MB v EB
| Jurisdiction | England & Wales |
| Judge | COHEN J |
| Judgment Date | 25 June 2019 |
| Neutral Citation | [2019] EWHC 1649 (Fam) |
| Court | Family Division |
Financial remedies – Separation agreement – Dealt with as preliminary issue – Potential vitiating factors – Parties able to decide to give no disclosure – Parties’ understanding on signing separation agreement – Husband’s potential need – Income need.
The couple met in England in 1999 and married in April 2000. The wife described herself as a businesswoman; the husband was at art college and later described himself as an artist. A few weeks after the marriage, the husband fell, suffering a cerebral haemorrhage. He was extremely ill, including being in a coma for about three weeks, but eventually recovered. After the husband’s treatment ended in 2002, the couple moved to Austria, sometimes living in the same accommodation and sometimes separately. In 2004 the wife was arrested, her passport was confiscated and she was unable to leave Austria for a time. In 2005, the husband moved permanently back to England, moving in with another woman. During that year, he visited the wife in Monaco, asking for a divorce; she refused. In 2006, the wife returned to England, living there separately from the husband. In 2007, the husband moved in with a different woman. Notwithstanding these other relationships, the husband continued to visit the wife, staying with her in her various homes from time to time.
After taking legal advice, the husband sought a financial settlement in 2009. The wife too took legal advice; she was anxious to secure British citizenship. The husband’s solicitors wrote to the wife ‘in connection with the regrettable break down of your marriage’. The wife responded saying that she was distressed to learn that the husband regarded the marriage as having broken down, and that she believed they were close to reaching an agreement that would provide him with financial independence. The negotiations were slow. It was reasonably clear that neither wanted a divorce, but the husband’s solicitors repeatedly threatened divorce if agreement was not reached. The husband proposed that the wife pay him £240,000 as a lump sum to cover his housing needs, plus an additional £50,000, plus a contribution to the costs of his counselling and other treatment; he offered an undertaking not to go to the wife’s home except with her consent. In June 2010, his solicitors described this proposed award as being ‘in full and final settlement’, provided the husband was able to purchase the flat he wanted. The wife’s solicitors sent a draft separation agreement in August 2010 and the deed of separation was signed on 7 February 2011.
The signed agreement stated that the couple had lived separately since 2004 and that they had each taken separate and independent legal advice. Its key provisions were that: they would ‘continue to live separately and apart and in separate households’; the financial arrangements were ‘accepted in full and final satisfaction of all claims which each may be entitled to make for themselves against the other’s income, capital, property or pension howsoever arising under the present or future laws of any jurisdiction including all or any rights that either party might otherwise have or arising from the application of the community or property law of any jurisdiction’; and the wife would provide up to £245,000 for the husband to purchase a property of his choice and would pay him a further lump sum of £35,000. The husband’s plan, known to the wife, was to rent out rooms in the flat he was purchasing in order to provide himself with an income; he himself was going to live in the garage, once that had been converted into a studio and very small flat. The wife in fact paid the husband rather more than the agreement provided for and in May 2011, the husband bought the flat.
For the next few years, the relationship continued much as before, in that the husband and wife spent time with each other and continued to depend on one another in various ways. In 2012, the husband helped the wife with her application to lift the restriction on her travel to Austria; in 2013, the wife purchased the flat above the husband’s flat, the owners of which were threatening the husband with legal proceedings; also in 2013 the husband and wife together purchased the freehold of the two flats. The husband took out a small mortgage on the property and borrowed £11,000 from the wife under a loan agreement, so that he could finish off building works. Meanwhile, the husband helped the wife with her own building works on the flat upstairs. Over the years the husband also made a number of visits, with the wife, to a flat in Monaco that belonged to the wife’s family. Both were clearly devoted to a pair of miniature greyhounds acquired in 2015.
However, in 2016, their relationship became much more strained. The husband began a relationship with another woman, who moved into his flat. In September 2016 the husband persuaded the wife’s concierge to let him into her flat and removed various items. Notwithstanding that the wife had always known how the husband was living, the wife’s solicitors wrote to the husband complaining that he was renting out his flat and that his garage studio was being used as a separate planning unit. In 2017 the husband wrote to the wife three times stating that they had no further claims on each other. However, after issuing divorce proceedings in August 2017 he also applied for financial remedies, arguing that the separation agreement was vitiated ab initio by reason of threats/duress; undue influence/pressure; and/or abuse of dominant position. In the alternative, he claimed that it would be unfair to hold him to the agreement because the couple had not in fact separated, as contemplated by the agreement; and also that holding him to the agreement would leave him in a predicament of real need.
In these proceedings, the husband argued that the marriage had lasted until September 2016, the wife that it had ended no later than 2004. The husband described the wife as having been involved in business of some sort during the marriage but did not suggest that she had done anything to increase her wealth, instead presenting her as a gambler and socialite. He claimed that he was the ‘home maker’. In her form E, the wife said that she benefited ‘from a business partnership between my mother and her Swiss based partners’; her role was said to be locating and negotiating property investments on their behalf and receiving funds as and when she needed money. She described these payments as being irregular and entirely discretionary. Her Form E set out assets worth about £3 million but she stated that through her family she should be treated as having resources of at least £50 million. The husband currently had a net income of about £15,000 pa from renting out most of his flat; this was his only source of income; he assessed his budget need as over £50,000 pa. He owned a property worth about £300,000. He owed his solicitors about £170,000. His property was charged in respect of the sums advanced by the wife pursuant to a LASPO in the sum of £236,000. About a year before the hearing, he had rejected an offer of £300,000 which would have cleared his costs at that stage and left him with £90,000.
There was a preliminary issue hearing to determine: the length of the marriage; the impact of the separation agreement; and whether there was any marital acquest.
Held – (1) In some rare cases, like this one, the definition of when parties separated could be extremely difficult. In this unusual case, the emotional and to some extent physical, connection had endured long after 2004, the last time at which the parties had lived together. However, although they had remained married, the court could not define the period after 2004 as a period in which a marital partnership had endured. After 2004 they had been apart far more than they were together. Their sexual relationship had concluded by then but, more significantly, the husband had been engaged in sexual relationships elsewhere. The husband had always had his own home from 2005 onwards and from 2011 this home had been a property that he himself had selected and purchased. Neither had been able to enter the property where the other lived without permission. For the bulk of the time since 2004 the husband had received no financial support from wife, with each of them paying their own way when they were apart and the wife paying for them both when they were together. These were all important indicators to when the marital partnership had ended. However, both had continued to assert the existence of the marriage and neither of them had wanted a divorce. There had remained a clear emotional involvement between them and neither, in truth, had really moved on emotionally before 2016. It was therefore inappropriate to exclude from all further consideration the whole of the period after 2004 (see [54]–[56], [60], [61], below).
(2) There was no evidence of any marital acquest during the period up to 2004 or afterwards. The wife had throughout been dependent on her family. The court must not be guilty of gender discrimination and did not apply different standards to a male claimant and a female claimant. However, the husband’s description of himself as the ‘home maker’ while the wife was the ‘breadwinner’ was risible. His suggestion that he had dealt with the domestic side of their life together was simply not sustainable (see [62], [65], below).
(3) In considering the alleged vitiating factors, it was important to remember that the process leading up to the separation agreement had been initiated by the husband. What had emerged when solicitors were instructed had been along the lines that the husband had sought. The parties had clearly agreed between them to give no disclosure; applying Radmacher v Granatino[2010] UKSC 42, [2010] 3 FCR 583, [2011] 1 All ER 373, this was an option available to them. The husband had known that the wife was well off, did not have to work for her very comfortable living...
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