A v B (Financial Relief: Agreements)
| Jurisdiction | England & Wales |
| Judge | BLACK J |
| Judgment Date | 17 January 2005 |
| Neutral Citation | [2005] EWHC 314 (Fam) |
| Date | 17 January 2005 |
| Court | Family Division |
[2005] EWHC 314 (Fam)
IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION
Royal Courts of Justice
Strand, London, WC2A 2LL
Black J
CHARLES HOWARD QC and LESLIE SAMUELS instructed by Griffiths, Smith, Conway for the petitioner
NICHOLAS FRANCIS QC and NICHOLAS ALLEN instructed by Radcliffes LeBrasseur for the respondent
This is the appeal of Mr A—I hope that he and Miss B will forgive me if I call them the husband and wife—against an ancillary relief order which was made by Deputy District Judge Green. The order is dated 8 April 2004. It followed a 2-day hearing which took place on 3 and 4 February 2004 and a reserved judgment which was dated 12 February 2004. The wife cross-appeals against the deputy district judge's costs order, but the argument of that issue has been deferred until I have given judgment on the substance of the husband's appeal, the outcome of which is likely to have a significant bearing on the costs issue.
The parties to the appeal are both aged 58. They married in 1976 following 3 years of cohabitation. There are no children. They separated in 1996 after the husband had formed a relationship with another woman, Miss F. He went to live with her in Bristol and the wife remained in the former matrimonial home in Wimbledon. The wife is a property journalist. She worked throughout the marriage and still does. The husband describes himself as a project manager in his Form E. His skill is in the IT field. He was not working at the time of the separation and had not done so since about 1990, having left his employment in 1989 to make an abortive attempt to start his own business. It was early 1999 when he managed to secure work again, this time on a short-term but lucrative contract. His fortunes are now rather better and he is in secure employment although with a retirement age of 60.
The parties did not sort out their joint finances immediately upon separation. However, in early 1999 with the spur that he needed accommodation because his relationship with Miss F was coming to an end, the husband approached the wife for a lump sum payment. He had found a bungalow near his parents' home on the south coast which he wanted to buy. He rented a property to tide him over immediately prior to that.
Correspondence between the parties in March 1999 shows that the wife wished there to be a written settlement of their affairs and her letter of 23 March 1999 says that her solicitor will insist on the husband showing any document to his own solicitor before signing it. The husband was instructing Messrs Lings in relation to the purchase of the bungalow. On 7 May 1999 the wife's then solicitor, Mr Forrest, faxed a copy of a proposed agreement between the parties to Lings. The accompanying letter makes clear that the wife was to raise the funds by way of remortgage. It does not say, but it was the case, that the building society had imposed a condition in relation to the mortgage that it should be established that the husband had no further claim in relation to the former matrimonial home. The letter also says, referring to the draft agreement forwarded: 'Your client should obtain independent advice from your firm or other solicitors before signing it'.
The agreement to which both parties ultimately subscribed and which is dated 13 May 1999 recites that it is made in full and final settlement of all and any claims that either party may have against the other. The main terms are:
(1) £133,000 would be paid 'in full and final settlement of all and any claims that [G] may have in the former matrimonial home'.
(2) The wife would transfer to the husband two cars: a 1962 Porsche Roadster and a 1972 Maserati Bora. (These were in addition to a Sierra Cosworth and a Renault that he already had.)
(3) On sale of the oriental rug collection the proceeds of the sale would be divided equally.
(4) A Standard Life endowment policy on the husband's life would be divided equally on maturity, the wife paying the premiums until February 2000 and the husband paying them thereafter.
The district judge made findings about the extent of the advice given to the husband in connection with the agreement. The husband had asserted that he had been advised by Mr Forrest, who was then acting for the wife, that a court would not necessarily be bound by agreement and that he felt able to sign it in the light of that advice. He said that Mr Ling, his own conveyancing solicitor, did not advise him about the agreement. The district judge did not accept this part of the husband's evidence. He found that the position was the reverse of what the husband alleged, that is that he was not given advice about the agreement by Mr Forrest, and was given advice by Mr Ling, albeit that, as the district judge found, the advice given was not comprehensive and appears not to have been confirmed in writing. The husband has not sought to go behind that finding.
It was the husband's case in front of the district judge that he had been blackmailed or pressured into making the agreement, not least because of his need for accommodation and the imminent purchase of the bungalow which he had chosen, in relation to which exchange of contracts and completion both took place on 13 May 1999, the date of the agreement. The district judge made a clear finding that the husband was neither blackmailed nor subjected to undue pressure. He concluded that any pressure that there was was from the husband himself because he had decided he wanted to go ahead with the purchase of that particular property. Nothing has been said on behalf of the husband on the appeal which dislodges that finding of the district judge.
The district judge's order was very simple. Rejecting the husband's argument that he should be granted further provision despite the 1999 agreement, he made only those orders which would put the agreement into effect. The parties had agreed that the oriental rugs would be sold by auction and he recited their agreement that the net proceeds would be divided equally. Apart from that, the husband having already received the lump sum agreed in 1999, the district judge simply dismissed all claims by either party for ancillary relief and disentitled them from applying in future either under the Matrimonial Causes Act 1973 or the Inheritance (Provision for Family and Dependants) Act 1975. The husband was ordered to pay £14,100 towards the wife's costs.
The husband now invites me to set aside the district judge's order and to exercise the ancillary relief discretion myself, granting him a lump sum of £250,000, or whatever sum I think appropriate, in addition to the other provision that is already contemplated or has already been made between the parties. The husband focuses his attack on the district judge's order on the following main points.
First, he criticises the district judge's evaluation of the 1999 agreement. He says: (a) the district judge wrongly failed to treat as significant the fact that the husband did not receive full disclosure and competent matrimonial legal advice before he entered into it; and (b) contrary to the finding of the district judge, the terms of the agreement were not fair at the time when one considers the assets the parties then had and all the circumstances of the case. Whilst it is not argued that the district judge should have ignored the agreement completely, the husband argues that in these circumstances the district judge should have given it significantly less weight than he did.
The second main heading raised by way of criticism for the husband is that the district judge completely failed, as he submits, to carry out the duty imposed upon him to evaluate all the s 25 factors at the time of the hearing before him and to exercise his discretion in the light of them. The husband says that the district judge treated the agreement as determinative and once he had concluded that it was fair in 1999 he went no further. Had he carried out the exercise required of him, Mr Howard QC and Mr Samuels, for the husband, submit that it would inevitably have revealed that the agreement did not provide for the husband's reasonable needs.
The district judge's judgment, although reserved, is not a long document. It extends to only nine and a half pages. That in itself is not a problem. A short judgment has much to commend it provided that it includes findings on all relevant matters and shows sufficiently that the district judge has exercised his discretion appropriately. I approach this judgment with that in mind, as well as giving full weight to the reality that the workload of a district judge or a deputy district judge is not such as permits unlimited amounts of time to be spent on any individual case. Lord Hoffmann observed in Piglowska v Piglowski [1999] 1 WLR 1360, [1999] 2 FLR 763 in 1999 that:
'The reasons of a district judge should be read on the assumption that, unless he has demonstrated the contrary, the judge knew how he should perform his functions and which matters he should take into account. This is particularly true when the matters in question are so well known as those specified in s 25(2). An appellate court should resist the temptation to subvert the principle that they should not substitute their discretion for that of the judge by a narrow textual analysis which enables them to claim that he misdirected himself.'
This district judge's short judgment is largely taken up with the question of the 1999 agreement which he identifies at the outset as perhaps the central issue in this case. He makes reference to the main authorities on the issue of such agreements to which he had been referred, ie Edgar v Edgar [1980] 1 WLR 1410, (1981) 2 FLR 19 in 1981, Camm v Camm (1983) 4 FLR 577 in 1983 and Smith v Smith [2000] 3 FCR 374. He does not set out in the judgment the principles derived...
To continue reading
Request your trial
-
F v M
...[2000] 3 FCR 374, the decision of Munby J. in X vX (Y and Z intervening) [2002] 1 FLR 502, and the decision of Black J. in A v B (Financial Relief: Agreements) [2005] 2 FLR 730. I do not detect any departure from the principles laid down in Edgar in these decisions. They contain a reaffirma......
-
L v L
...the agreement, the court is still required to conduct a full scale inquiry at considerable costs of the parties. Recently, in A v B [2005] EWHC 314 (Fam), Black J held that Smith did not alter the time-honoured principles laid down in Edgar and Camm and it was a decision on the facts of the......
-
Wong Kien Keong v Khoo Hoon Eng
...534 at [38]; MacLeod v MacLeod [2010] 1 AC 298 at [25], [42]; NA v MA [2007] 1 FLR 1760 at [13]; A v B (Financial Relief: Agreements) [2005] 2 F.L.R. 730 at [13]; X v X (Y and Z Intervening) [2002] 1 F.L.R. 508 at [84]; Benson v Benson (Deceased) [1996] 1 F.L.R. 692 at 704G-705B). Ormrod LJ......