X v X (Y and Z Intervening)

JurisdictionEngland & Wales
JudgeThe Hon Mr Justice Munby,MR JUSTICE MUNBY
Judgment Date09 November 2001
Judgment citation (vLex)[2001] EWHC J1109-5
CourtQueen's Bench Division (Administrative Court)
Date09 November 2001

[2001] EWHC J1109-5

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

PRINCIPAL REGISTRY

MR JUSTICE MUNBY

(In Private)

The Hon Mr Justice Munby

X V X (Y and Z Intervening)

Mr Martin Pointer QC appeared on behalf of the Applicant husband (the Respondent in the suit)

Mr Jeremy Posnansky QC appeared on behalf of the Respondent wife (the Petitioner in the suit)

Mr Irvine MacCabe appeared on behalf of the wife=s brother and a firm of solicitors

This is the Judgment handed down in private at 10am on Friday 9 th November 2001

9

th November 2001

The Hon Mr Justice Munby

X v X (Y and Z intervening)

MR JUSTICE MUNBY
9

November 2000

1

This is an application by a husband (as I shall refer to him although the marriage has now been terminated by a decree absolute) requiring the wife, in accordance with Dean v Dean [1978] Fam 161, to show cause why minutes of order giving effect to an agreement said by him to have been arrived at between them should not be made an order of the court. Not altogether unusually in cases of this kind the wife resists the enforcement of her agreement. What is perhaps somewhat unusual is that, looked at from one perspective, the basis of her objection is not that the husband has agreed to pay her too little but that she has agreed to pay him too much.

The facts

2

The case is one of very substantial—on one view enormous—wealth. The husband and the wife are both Jewish. Religious, cultural and social obligations lie at the heart of the case. In the light of the arguments that have been addressed to me I need to go through the history, including the history of the negotiations, in some detail.

3

The husband is in his forties, the wife in her thirties. They married in 1995. There are no children. The marriage had broken down by January 2001, when the parties separated. Shortly after their separation gossip appeared in the media about the wife=s alleged relationship with another man. On 7 February 2001 the wife=s solicitors wrote to the husband saying she had reached the conclusion the marriage could not be saved and indicating that she would like to formalise the separation and proceed to a divorce in a civilised manner. On 14 February the husband=s solicitors replied that they were instructed to issue divorce proceedings based on the wife=s alleged adultery. I should add that both the wife=s solicitors and the husband=s solicitors are very well known firms with very considerable experience and expertise in handling the divorce cases of the cosmopolitan and the very wealthy.

4

On either 15 or 18 February (which is not altogether clear, though nothing turns on the point) there was a meeting between the husband and the wife=s father. I shall have to return in due course to the evidence of what took place during this meeting but for the moment it suffices to record that on 19 February the wife=s solicitor wrote a without prejudice letter to the husband=s solicitors:

AI am instructed that your client met with my client=s father yesterday, and that they reached agreement as follows;—

1. Your client will give mine a Get forthwith.

2. A payment will be made to your client of,500,000 in full and final settlement.

3. The payment to your client will be made upon the Get being given or the Decree Nisi and the making of the Order, whichever is later.

4. Your client will not issue a divorce petition. My client will issue a petition based on your client=s unreasonable behaviour. Neither party wishes for there to be any unpleasantness and the particulars will be drafted in anodyne terms. I attach a copy of the proposed particulars for your client to review. If he objects to any of them, my client will agree to amend them. Please let me know.

5. There will be no order as to costs, both with respect to the divorce and finances.

6. There is to be a clean break between the parties.

Please confirm by midday on Wednesday that this is all agreed and that this concludes all issues arising from the marriage and its breakdown.

The above is conditional on Minutes being agreed and signed within the next seven days.@

5

The husband=s solicitor replied on 20 February, again without prejudice:

AThank you for your letter of 19 th February upon which I have taken instructions.

1. I am instructed that my client will give a Get once the,500,000 is paid into my client account which will be paid over (together with any interest thereon) upon the Get being obtained. Therefore once I have the funds and the Minutes of Order have been signed by our respective clients and firms, the parties can get the Get.

2. So far as the divorce proceedings, I enclose herewith the particulars which my client will accept.

3. I am instructed that part of the agreement was that your client would transfer to our client the Mercedes car number … free of all encumbrances.

I look forward to hearing from you.@

6

The wife=s solicitor responded, still without prejudice, on 1 March:

AYour letter does not accord with the agreement reached.

1. It was suggested that the money should be held by this firm pending payment to your client, in order to give your client comfort. It is not acceptable that the money should be paid to you in advance, nor that your client should benefit from the interest. The money will only be paid to your client when both the Get has been given, the Order made and the decree absolute granted (with an agreed time limit of 12 weeks from the date of decree nisi).

2. Thank you for the amended particulars. I will now prepare a Petition. Please confirm that you are instructed to accept service.

3. It is agreed that your client should retain the number plate, once he has returned my client=s car to her.

Please can you confirm that the above is now agreed and I will let you have draft Minutes.@

7

Further correspondence ensued. In a without prejudice letter dated 7 March the wife=s solicitors told the husband=s solicitors that the,500,000 was in fact being provided by the wife=s brother. They commented that their client and her family Aare steadily losing patience at the continued attempts by your client to change the agreement reached@.

8

On 12 March the brother=s solicitor wrote to the wife=s solicitor, a copy of the letter going to the husband=s solicitors:

AI have not been privy to your discussions with [the husband=s solicitor] (or, possibly, to all the correspondence that has passed) and as such I cannot be certain that everyone (particularly [the husband] and his advisers) really understand the basics of this matter.

The marriage has clearly broken down and a divorce is inevitable. There are no children to consider and accordingly the only issues to be determined are those of finance and the Get.

[The wife] has no means of her own and few prospects of acquiring the same. She is not a beneficiary of any description of the beneficiary family trusts (or any other trusts for that matter) and has no expectation from that source. Throughout their marriage, [the husband] has provided for them both in the traditional way, assisted from time to time by gifts from [the wife=s] father and brothers.

In the circumstances, there can be no responsible suggestion that [the wife] should somehow be required to make financial provision for her husband as a consequence of their separation. If anything, the contrary is almost certainly the case.

Notwithstanding, [the wife=s] brother … has agreed to pay [the husband],500,000 in order to dispose of the matter without further ado and to secure the Get. This payment will be made gratuitously and is not a matter over which [the wife] has any control. The payment will pass upon the making of the decree nisi and the grant of the Get. I will be put in funds at this stage in order to secure the payment and will extend the appropriate undertakings.

[The brother] is not prepared to proceed in any other way and has instructed me to make it clear that if the matter is not agreed and documented on this basis by close of business on Friday next, then he will withdraw his offer which will not be repeated in any circumstances. [The husband] should also be aware that at that point [the brother] will underwrite the pursuit of a more equitable solution.@

9

On 15 March the husband=s solicitor wrote to the wife=s solicitors, still without prejudice. On 22 March they replied without prejudice:

A1a. It is agreed that my client will issue a Petition in agreed terms, which she will pursue with expedition to decree absolute. I am issuing the Petition today.

1b. It is agreed that the money should be paid to your client upon the decree nisi being declared, the financial order being made and the Get being given. The money will not be paid until all three events have occurred.

1c. The,500,000 will be held by [the brother=s solicitor] in his client account. Once I have advised you that the money is being held, undertakings will be provided by me and [the brother=s solicitor] that the monies will be released to your client forthwith upon the three conditions having been satisfied and, pending that, the monies will not be released to anyone. Your client will then give the Get. For the avoidance of doubt, it is agreed that the first step should be for the money to be paid to [the brother=s solicitor], followed by the undertakings, followed by your client giving the Get, signing the Minutes and my client pursuing the divorce, which your client will not defend.

2. I will serve the Petition as soon as I have received it from the court. I will also then send you draft Minutes. Please note that the Petition does seek a costs order. Provided your client does not file a Notice of Intention to Defend, that costs application will not be pursued.

3. It is agreed that your client will use my client=s car until he has purchased a replacement (the end of this month should be quite sufficient) and he will retain the number plate.

I look forward to hearing from you.@

10

On...

To continue reading

Request your trial
1 cases

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT