Mrs H v Mr H
| Jurisdiction | England & Wales |
| Judge | His Honour Judge Booth |
| Judgment Date | 04 March 2016 |
| Neutral Citation | [2016] EWFC B81 |
| Docket Number | Case No. MA15D00053 |
| Court | Family Court |
| Date | 04 March 2016 |
[2016] EWFC B81
IN THE FAMILY COURT
SITTING AT MANCHESTER
Manchester Civil and Family Justice Centre
1 Bridge Street West
Manchester
M60 9DJ
His Honour Judge Booth
Case No. MA15D00053
Counsel for the Applicant Wife: Mr WagstaffeQC
Counsel for the Respondent Husband: Miss HarrisonQC
This case arises out of the failure of the marriage between Mr and Mrs H. The issues for determination are, first of all, the trial of the main divorce suit and, secondly, the final hearing of Mrs H's application for financial remedy. This includes a determination of Mr H's show cause application as to why an order should not be made in the terms of a prenuptial agreement they signed before they married. I decided at a hearing in December 2015 that it would be convenient to hear all of these matters together.
Mrs H has been represented by Mr Wagstaffe QC and Mr H by Miss Harrison QC. I am grateful to both of them for the careful and measured way in which they have dealt with sensitive evidence in this case and the comprehensive and helpful submissions that they have made to me, both on the facts and on the law.
The evidence before me is extensive. I have heard both Mrs H and Mr H give evidence and be cross-examined. I have a transcript of the criminal trial to which I will refer in more detail in due course. What I do not have, however, is the DVD of Mrs H's evidence which stood as her evidence in chief in the Crown Court. I have statements from both parties. Each filed a comprehensive section 25 statement. I have a Form E1 from both of them and a Form E from both of them. I have two further statements from Mrs H at an earlier stage in these proceedings and I have Mrs H's Form E from proceedings which involved a former husband.
I must first of all investigate the factual dispute between these parties that centres on the circumstances in which their marriage broke down. I remind myself right at the outset that the burden of proving an allegation lies with the party who makes that allegation. No matter how serious the allegation is, the standard of proof is still the same. I must determine these issues on a balance of probabilities; in other words what is more likely than not. In considering my factual determination, I must survey the whole canvass and I must look at all the evidence giving appropriate weight to different parts of it as a way to helping me decide where the truth lies. This process has often been described as putting together the pieces of a jigsaw.
That said, it is not necessary nor is it appropriate for me to make findings of fact on every single matter that is disputed between these two parties. I will therefore concentrate in this judgment on the matters that I think are significant. That does not mean that I have not weighed in my thought processes all of the evidence I have heard and read.
I must give myself a Lucas direction. People tell lies. The mere fact that somebody lies about one thing does not necessarily mean they are being untruthful about everything. Sometimes people can convince themselves of the truth of something that simply cannot be. Sometimes they may exaggerate so that something becomes untrue simply because they fear the truth might not be believed. There is a particular problem in this case in that this is the second occasion where this couple have given evidence before a court and been cross-examined so that time has been spent investigating inconsistencies in what they have said to me and what they might have said on previous occasions. Those are all matters that I must take into account.
As I indicated, this judgment is in proceedings for ancillary relief. What is it that the parties say should be the outcome of these proceedings? Mr H' position is easily stated in that he wishes to uphold the integrity of the prenuptial agreement and in order to avoid this litigation made a commercial offer of a payment of £88,000, but that sum reducing pound for pound by costs incurred by Mr H from the date of that offer. The effect of his offer is that Mrs H would now get nothing.
Mrs H's position is a little more complex. When giving her evidence she told me that the only thing that she seeks is justice. For her, justice means a finding that she was anally raped by Mr H. Her solicitors on her behalf have put forward a proposal by way of an open offer to resolve the financial proceedings. She seeks in total £361,000 made up as follows: a house at £220,000; capitalisation of a lifetime maintenance award on Duxbury principles of £77,000; and a payment of her debts, including her outstanding legal costs, of a further £64,000.
In determining the outcome of the financial remedy proceedings, I have a two part task, firstly to establish what there is available for distribution and, secondly, to decide how to distribute it by applying the familiar checklist in section 25 of the Matrimonial Causes Act looking to achieve a clean break between these parties. From that checklist, a number of matters are likely to be central to my consideration: the parties' means and obligations; the duration of the marriage; their ages; conduct; and the terms of the prenuptial agreement. At the end of that process, I have to step back and determine what I assess to be a fair outcome between them. So let me set out more of the background to this case.
Mrs H is 64 years of age and Mr H is 72 years of age. They met in 2012 and by September 2013 they had an established relationship that, if it was not cohabitation, was very close to it. They married in December 2013 and separated shortly thereafter in March 2014. On Mrs H's case, the breakdown of the marriage after such a short period of time was the direct result of the commission on her by Mr H of an act of anal rape. He was charged with rape and prosecuted but was acquitted by the Crown Court in January 2015.
Mr H is a relatively wealthy man and Mrs H has no assets of substance. She has a number of medical difficulties and asserts that she has no realistic earning capacity.
Before they married, they entered into a prenuptial agreement, the terms of which and the effect of those terms is not disputed. Each was to retain what they had prior to their marriage and neither was to have a claim against the other. Whilst conceding that that would be the effect of the terms of a prenuptial agreement, Mrs H argues that it would be simply unfair to leave her without any form of financial provision in her old age especially as she contends that it was Mr H' conduct that was the reason for the breakdown of the marriage. She says he would be financially benefitting from his own wrongdoing.
I can set out the history of the litigation relatively briefly. As the breakdown of the marriage occurred within a year of its celebration, Mrs H was unable to institute divorce proceedings before December 2014. In May 2014, she made an application for financial support pursuant to section 27 of the Matrimonial Causes Act 1973. That application was heard by me on 27 th November 2014 when I made an order that Mr H should pay Mrs H a sum of £1,500 per month, concluding that the terms of the prenuptial agreement did not cover the circumstances presenting to me – H v H [2015] EWHC B24 (Fam).
In January 2015, Mrs H issued a divorce petition relying upon Mr H's conduct in relation to the act of rape. He denied that allegation and cross-petitioned on the grounds of Mrs H's behaviour in March 2015. Form A launching financial remedy proceedings was issued by Mrs H in May 2015. That was allocated to the Northern Circuit Money List and directed to me.
Within those proceedings, an application was made for a legal services payment order. That was determined by a deputy district judge who made an order. Mrs H appealed. I determined that the provision in the order was inadequate. At a hearing in December 2015, I provided that from then onwards Mr H, being the only one with any assets to speak of, should provide Mrs H with £1.00 for every £1.00 he spent on his legal costs. That way, my objective was to achieve equality of arms between the parties and which might have had the benefit of limiting the exponential expenditure on costs that seems to occur in this type of case as they progress to final hearing.
Mrs H's Form E dated 14 th August 2015 effectively discloses nothing but debt, including unpaid legal fees, and identifies her only sources of income as being state benefits. Mr H's Form E dated 8 th August 2015 describes him living in a property owned by his daughter. His house in Bramhall where the parties lived during the duration of the marriage is valued at £580,000 and is mortgage free. At that time, he disclosed liquid capital of £60,000, four motor vehicles, and an aeroplane. His income was disclosed at just over £10,000 per month net.
There has been no investigation or valuation evidence of Mr H's worth. At the time of the prenuptial agreement, he disclosed a substantial shareholding in H Group PLC worth no less than £3 million. This is a family business that Mr H continues to work in. It is the source of his income and it has been the source of his accumulated wealth.
Since the signing of the prenuptial agreement, he has given his shareholding to his two children, apart from 100 shares which are likely to have a nominal value. They both work in the business and they now are equal shareholders. There has been no attempt, sensibly, for Mrs H to take proceedings under section 37 of the Matrimonial Causes Act to try and restore those shares to Mr H. I am invited...
To continue reading
Request your trial
-
ST v CT
...CanLII 1709 (BC SC): referred to Varney v Varney 2008 NBQB 389: referred to. H England BN v MA [2013] EWHC 4250 (Fam): referred to H v H [2016] EWFC B81: referred to Hyman v Hyman 1929 AC 601 ([1929] All ER Rep 245): referred to Jessel v Jessel [1979] 3 All ER 645 (CA): referred to I Livese......
-
ST v CT
...premarital property (para 28). Few could quibble, I would have thought, with the enforcement of the antenuptial contract in H v H [2016] EWFC B81, where the B marriage lasted only 12 [191] In Canada the approach was initially laid down in Pelech v Pelech above n 55 and is now to be found, o......