TY v XA (No. 2) [2025] EWFC 349

[2025] EWFC 349

Case No ZC23F04022

IN THE FAMILY COURT

Venue AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LL

Date 1 July 2025

Before

MR JUSTICE CUSWORTH

Between

TYApplicant

XARespondent

Rebecca Carew Pole KC (instructed by Vardags) for Applicant

Michael Horton KC (instructed by Helen Pidgeon Solicitors) for Respondent

Hearing Hearing dates: 9 May 2025 -16 May 2025

JUDGMENT

Mr. Justice Cusworth:

[1]This judgment concludes composite proceedings pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 and Schedule 1 to the Children Act 1989, between TY (aged 40) and XA (aged 41), whom I shall refer to in this judgment, conventionally, as the husband and wife.

[2]The couple began cohabiting in 2009, married in Austria in June 2012 and separated in 2018. The parties finalised their divorce in Germany on 10 December 2019. There are two children of the marriage, BA (born January 2015, and so aged 10) and PA (born August 2016, and so aged 8), both of whom live with the wife in West London , and attend a fee-paying school in the same area. They moved here from Germany in 2023. Both children have been diagnosed as dyspraxic, BA has been treated historically for acute anxiety and panic attacks, and PA has been diagnosed with Condition A, which also affects the wife. The husband is now re-married and has two young children (aged 3 and aged 2) with his second wife. He has been living in London since 2021.

[3]This case was listed before me for 6 days, from 9 May 2025 to 16 May 2025, with day one reserved for judicial reading. I have heard and read evidence from both parties, along with full and detailed written and oral submissions from counsel on both sides, Rebecca Carew Pole KC for the wife, and Michael Horton KC for the husband.

Litigation

[4]This case has an unfortunate history of protracted litigation both in Germany and in this jurisdiction. Subsequent to the parties’ divorce in Germany on 10 December 2019, there were ongoing contested children proceedings between 2021-2023. The wife applied on 6 March 2023 for permission to apply for financial relief pursuant to section 13 of Part III of the Matrimonial and Family Proceedings Act 1984. At the time of the wife’s application, she was still living with the children in Berlin, whilst the husband had been residing in London since April 2021.

[5]There is much contention as to the motive behind the wife’s application, which the husband puts down to opportunism given the timing of the wife taking legal advice from her English solicitors from November 2022, and soon thereafter informing the husband that she intended to relocate to England with the children. I am not satisfied that those matters, if true, are probative of anything. In February 2023 the wife formally applied to the German Court for permission to relocate. The wife says that the application was made for the benefit of the children and to be close to her medical team in London. What is clear is that the wife’s decision to relocate with the children was approved by the German Court, who granted her permission to relocate to London on 13 April 2023. Notwithstanding this, the wife’s haste in then taking the decision to remove the children from their school in Berlin very soon afterwards, and to move to London prior to the term-ending, was striking, particularly as it most likely hampered the husband’s ability to appeal of the German Court’s relocation decision, and led to the children not being in school from April until the following September.

[6]Leave was granted in England by District Judge Jenkins on the 24 April 2023 for the wife to pursue her Part III application. The husband then applied to set aside the leave granted on 23 May. Moor J refused the husband’s set aside application on 4 July and the husband then sought to appeal Moor J’s decision to the Court of Appeal, which appeal was subsequently refused by Moylan LJ on 28 November 2023.

[7]At the first set-aside hearing before Moor J on 4 July 2023, the wife’s application for interim funding, made the previous April, had been granted and the husband was ordered to make global periodical payments of £15,000pcm, to pay the children’s school fees and pay a costs allowance/legal services provision of £120,000 to the wife in instalments of £20,000pcm. Moor J also set down standard directions to take the matter forward including filing of Forms E, questionnaires, replies and disclosure. Although Moor J had allowed the wife £7,500pcm for her rent, she then chose to rent a property costing her £9,000pcm.

[8]The husband’s first set-aside application was dealt with on the basis of what was thought to be the correct law at the time. However, Moor J gave the husband permission to make a second set-aside application if, following the Supreme Court’s decision in Potanin v Potanina

[2024] UKSC 3

, it was argued that he had conducted the wrong test in dealing with the first permission application. Subsequent to the Supreme Court’s decision in Potanin, the husband then duly reapplied to set aside the wife’s application on the 8 February 2024. The wife then made an application pursuant to Schedule 1 of the Children Act 1989 on 1 March, to supplement her Part III claim. This was followed by a further application by the wife for LSPO funding on 12 March, in light of the husband’s second set aside application. A further directions hearing before Moor J took place on 27 March, at which the husband was ordered to pay £84,000 as a contribution towards the wife’s legal costs. Moor J consolidated the wife’s Part III and Schedule 1 applications, made further standard case management directions and listed the husband’s second set-aside application, which was ultimately unsuccessful, for 24 April 2024. Moor J then dismissed the husband’s second application, and his reasons are set out in the reported case of TY v XA

[2024] EWFC 96

, which I have carefully considered, but on the basis that I have of course had the advantage of the parties’ oral evidence and full submissions from counsel on those matters which were before him that are also relevant to this final determination.

[9]The parties came before Peel J on 16 May 2024 for a Financial Dispute Resolution Appointment.

[10]A directions hearing was listed before me on 18 October 2024, at which I granted the wife’s application, made on 4 October, for further funding in respect of costs between the FDR and final hearing. I ordered the husband to pay a further £328,000 (inclusive of VAT) as a contribution towards the wife’s legal costs. The parties agreed to increase the global periodical payments made by the husband to the wife from £15,000pcm to £16,500cm. The husband complains that he would not have agreed to such an increase if the wife had disclosed the fact of some Airbnb income that she was by then in receipt of, which I will return to later. I also made various consequential directions to take the matter to a pre-trial review on the 28 March 2025. Subsequently, a number of issues have arisen about the circumstances obtaining at the time of this agreement, addressed below.

[11]At the post-FDR directions hearing it was agreed that no third party witnesses were to be called by either party for the final hearing, so that the only oral evidence before me has been from the husband and wife. Again, issues have been raised about the basis on which that agreement was arrived at, and the extent to which it limits the findings now open to me.

Background

[12]The husband was born in Austria and the wife was born in France. The couple met in 2009 and began cohabiting soon after. The parties were in their late twenties at the time and were splitting their time between Paris and Berlin, as the wife was studying for her PhD at university in France , and the husband was employed as a consultant at Company A, working primarily in Berlin. The husband moved to become the Head of International at Company B in January 2011 and then moved to become Head of International Operations of Company C in July 2011. Following the husband’s employment at Company C, the parties relocated to Vienna in November 2011.

[13]The wife completed her PhD in 2012, however she did not ‘defend’ her thesis and so never received the full doctorate. It is not in dispute that the wife has not entered into ‘formal’ employment since completing her PhD. There is some dispute, however, about the extent of the wife’s freelance interior design work which she carried out to assist the husband and for the parties’ private benefit during and subsequent to the marriage. The wife does not deny that she carried out some such work, but she says this was limited and during the marriage she was the primary carer and homemaker. The husband disagrees.

[14]The wife has an evidenced history of mental and physical ill-health before, during and after the marriage. The husband accepts that the wife was diagnosed with Condition A in 2017, after the birth of the two children, and that he assisted her with finding a specialist medical team in London, whilst the parties were still resident in Germany, and attended appointments with her. The wife consistently had a treating psychiatrist during the marriage; a Dr. QX , whom she started seeing when the parties were living in Vienna. Dr. QX remained the wife’s psychiatrist until 2019. The true extent of the wife’s physical and mental ill-health is in dispute, and is baldly challenged by the husband. I will address the wife’s ill-health and earning capacity further on in this judgment, as the findings I make will be important to the overall outcome.

[15]The parties entered into an Austrian Pre-Nuptial Agreement (‘the Austrian Agreement’) on 27 June 2012, two days before they married on the 29 June 2012. The agreement provided for an Austrian choice of law, ‘separation of property’ and alimony. The circumstances surrounding the Austrian Pre-Nuptial agreement are disputed. Mrs. Carew Pole KC for the wife invites me to attach little weight to the agreement; the wife says she was presented the document in the car on the way to the notary’s office, the document was written in German when her first language is French, and she was given no legal advice about its meaning or the consequences of signing. Its terms have to a significant extent been superseded by the later 2019 German Separation Deed (‘the German Deed’), but it remains a relevant consideration that the parties’ marriage has been conducted throughout on the basis of a separation of property regime.

[16]Throughout the marriage, it is clear that these parties lived a peripatetic lifestyle, with the husband travelling all over the globe for work including Tokyo, Moscow, Kiev and San Francisco. The husband left Company C in 2013 and in January 2014, he became Head of International at Company D in London, a subsidiary company of Company E . The wife says that at this point the parties were spending time regularly in London.

[17]In May 2014, the husband became the Head of Europe at Company E, establishing an office in Berlin. During this time, the parties were based in Vienna but also spent time in Berlin. The husband started accruing significant wealth during this period, setting up various tax-efficient corporate structures, which included entities in France and Cyprus. The parties began spending regular time in Cyprus, and the wife says that between 2014-2016 the parties were essentially living between Berlin, Cyprus, London and Vienna (spending differing amounts of time between all four locations), with a longer stint in Cyprus between May and October 2016. The wife also says that the two children, born in 2015 and 2016, were conceived in London.

[18]In November 2016, the parties relocated to Berlin, renting a substantial and luxurious penthouse as the family home and renting two smaller apartments in the same building for guests. Although Berlin was the parties’ primary base, they also benefitted from a complex of villas in France which were acquired in 2017. The husband had, by this point, accrued significant wealth, the bulk of which would have been treated as being matrimonial by the courts in this jurisdiction.

[19]The parties’ separation took place in 2018, with the exact date being in dispute. The parties signed a notarised separation deed on 5 July 2019 in Berlin which states:

“We have separated since 2nd July 2018 and since 4th October 2018 have been living at separate residences.”

The wife contends the actual date of separation was the 4 October 2018 (this is the date in the agreed composite chronology and is set out in the decision of Moor J in TY v XA), which she says is when the husband suddenly cut her off financially, stopped contact with the children and made her relocate to one of the two smaller apartments in the same building that the parties had resided in together in a larger flat, where the husband remained with the children.

[20]The husband maintains the parties separated in July 2018, as was stated on the German Deed. The husband has provided very little detail regarding the July separation date in his evidence, but in his second statement he asserts:

“We separated in July 2018. TY was having an affair.”

The wife says the parties spent the summer in the South of France in July 2018 and were planning for a third child in September 2018. The wife says the reason for the 2 July 2018 date on the German Deed is because the parties had to have been separated for a year in order to enter into the deed on 5 July 2019. Even though their marriage may have been in an unhappy and fractured state in the summer of 2018, they were still living together under the same roof. Whilst I cannot find that the husband’s reliance on the earlier date was designed to enable the German deed to be entered into earlier, I am satisfied that the appropriate date for the ending of the marriage was the wife’s departure from the family home in October 2018, although ultimately little now turns on this.

The German Deed

[21]As referred to above, the parties signed a notarised separation deed in Germany on 5 July 2019 which expressed itself to have finalised both the parties’ financial relationship, and the child arrangements. The deed was signed in the presence of the notary, the husband, the wife, the parties’ German lawyers and Dr.QX, the wife’s treating psychiatrist, who the husband characterises as acting there in the role of mediator. The deed was then approved as an order by the German Court, formalising the parties’ divorce, on 10 December 2019. It was recited in the directions order of 18 October 2024, that the parties agreed that “as a matter of German Law the notarised deed dated 5 July 2019 is a valid and binding instrument and an authentic instrument for the purposes of Art 17 of the EU Maintenance Regulation”. The jointly instructed German Law Expert, Dr. Cornelia Maetschke-Biersack, had taken the same view in her report dated the 2 October 2024, which informed that recited agreement.

[22]The German Deed provided for the following:a. German law is chosen as the law applicable to the parties’ respective maintenance obligations.

b. the husband would pay the wife’s rent and ancillary costs at her Berlin flat until 31 August 2028;

c. the husband would pay the private school fees for the children;

d. the husband would pay for the children’s medical insurance;

e. the husband would pay child periodical payments of €567 per child per month for the two girls (plus up to €900 for an additional requirement such as a nanny), during their minorities, according the relevant German formula;

f. the husband would pay spousal periodical payments of €2,100 per month until the end of August 2024, with no offsetting of any income earned by the wife in that time;

g. both spouses ‘assume’ that the wife will in future be able to earn her own income, with that potentially increasing as the children get older; and

h. there is a reciprocal waiver of any claim to post-marital maintenance save as specified, and a declaration that the parties live in ‘secure financial circumstances’.

[23]The wife received no outright capital provision. The German Deed included a declaration by the husband of his willingness to give the wife work contracts after the divorce and notify her of any opportunities. Whilst as explained the wife waived post-marital maintenance, with the exception of what was set out, the deed also contemplated that there could be a potential extension of maintenance payments from 1 September 2024 ‘should they negotiate’ it, but providing for a 50% offset of any independent income earned by the wife in that event. This is described by the German Law Expert as an “unusual provision as it contradicts with the declared waiver.” The wife was to take over her parents’ property in Paris or Berlin by way of accelerated inheritance, and to receive a rent from them once this had happened, to provide her with financial security.

[24]The relevance of the expectation that the wife would find future employment as set out in the German Deed, and the contemplation of a possible extension in term of the maintenance provision, will be addressed later.

[25]Weight to attach to the German Deed. Mrs. Carew Pole KC takes serious issue about the weight, if any, that should be attached to the German Deed by the English court, taking into account the circumstances in which the wife entered into the agreement, addressed below, and the 14-month post-separation period between the wife leaving the family home in October 2018,to the approval of the German Deed by the German Court in December 2019.

[26]Mr. Horton KC for the husband questions the extent to which the wife can challenge the weight to be attached to the German Deed, if at all, considering that no relevant third-party witnesses were by agreement called by either party, amongst whom he says could have been(i) the notary

(ii) the wife’s psychiatrist

(iii) the husband’s lawyer and

(iv) the wife’s lawyer. Mr. Horton argues that as the parties have agreed that the German Deed was a valid and binding instrument for the purposes of Art.17 of the EU Maintenance Regulation (‘the Maintenance Regulation’), as recorded on the order of 18 October 2024, it is not now open to the wife to challenge the circumstances surrounding the creation of the German Deed, or to argue that the Deed is unfair and that she did not enter into it of her own free will, with a full appreciation of its implications, as she seeks to do.

[27]Mrs. Carew Pole KC took me to the transcript of the 18 October 2024 hearing, where she had made clear at the hearing that notwithstanding any agreed recitals regarding the status of the German Deed as a valid and binding instrument under German law, which she referred to as a concession about the ‘technical status’ of the deed, that she would nevertheless be challenging the weight to be attached to the German Deed itself. Mr. Horton KC says the parties were clearly at cross-purposes at the 18 October 2024 hearing when agreeing not to call any witnesses and when agreeing for the recital recognising the German Deed as a binding instrument for the purposes of the Maintenance Regulation, to be included on the face of the order. Whilst I acknowledge that I have not heard from the attendant witnesses, other than the parties themselves, I have from their evidence and from the documents that each of them has produced emanating from various concerned professionals prior to, and during, the final hearing, got what I consider to be a full picture of the situation in 2019, both when the deed was signed on 5 July and later when the final divorce order was made on 10 December. I also however acknowledge that this is a claim under Part III where the German order is now 4 ½ years old, and that the Deed would be regarded as valid in Germany, the country in which the parties agreed in the deed that their respective maintenance obligations would be determined.

[28]I will therefore deal with the evidence I have heard and read concerning the circumstances in which the wife entered into the German Deed under a number of separate headings, taking the relevant 14-month period from separation to the approval of the Deed by the German Court on 10 December 2019. I do so keeping well in mind at all times the German Deed’s status.

[29]Post-Separation. The wife’s evidence is that on the 4 October 2018 she was suddenly told by the husband to move downstairs to one of the guest apartments in the parties’ apartment building in Berlin; that the financial support she relied on was reduced drastically; and the husband stopped paying for her medical insurance so that she became reliant on funds loaned by her parents. The husband began placing pressure on her to agree the parties’ divorce and her access to the children, both then toddlers, was restricted by the husband and they remained with him in the family home, at which point her physical and mental health began to deteriorate significantly. The wife says it was not until around Easter 2019 that she finally started seeing the children more regularly, for weekly overnight contact.

[30]The husband accepts that he told the wife to move out of the family home, although says that this was on the recommendation of the wife’s father. The parties’ Austrian Agreement provided for her to vacate within 3 months of marital breakdown. The husband queries the extent to which the wife’s mental health was deteriorating, the extent to which her contact with the children and access to financial resources was limited, and denies that her medical insurance was cut off, as she asserts. I am satisfied that he did stop paying separately for this around March 2019, and that he thereafter expected her to pay for it out of the limited payments that he has making to her, and did not continue to provide for it independently. He did continue to pay for the children’s insurance.

[31]The husband concedes that the wife did not see the children for “maybe three days” after he says she threatened to commit suicide in October 2018. He says she soon began spending time with them, including overnights. Mrs. Carew Pole KC put to the husband that the downstairs flat did not have beds for the children until Easter and any contact they did have with the wife was monitored, at the direction of the husband. The husband says he did not know what the sleeping arrangements in the apartment were and that it was mainly the wife’s family who monitored her with the children. The husband regularly responded to the questions put to him by Mrs. Carew Pole by saying that there were WhatsApp messages between the parties demonstrating what happened during this period and they had an amicable relationship at the time.

[32]There are cumulatively eight statements before me in this matter provided by the parties; despite this, I regularly had to consider additional evidence that both parties asked to put before me during the final hearing. I gave the husband permission to provide some of these WhatsApps, necessarily limited, with a clear explanation of their relevance, and said I would consider the weight to attribute to them. Mrs. Carew Pole says that the evidence produced by the husband supports her client’s case, demonstrating that he was completely in control of what was going on at the time. Ultimately, these messages did not really shift the dial in relation to the impression that I otherwise received from the parties’ evidence to me.

[33]The parties agree that there was a family therapy session with Dr. QX in late 2018; the wife says this was on 29 November 2018, at which the husband presented her with divorce papers which dealt with the financial arrangements and access to the children. The wife says pressure was placed on her to sign the documents at the therapy session, with the husband saying that if she did not sign them, she would have no access to the children. The husband’s evidence is that he told the wife to find lawyers as soon as possible. He accepted that he was adopting what he described as a ‘negotiating position’, which was that if the terms he was proposing were not agreed, then the matter would progress to a contested court hearing. I am satisfied that the strength of this position from his perspective, was that within any court proceedings criticisms of the wife’s parenting could be made which might impact on her time with the children, and that he was aware that she was very worried about this.

[34]The parties, during the final hearing, waived privilege in relation to the mediation protocol document, which included the minutes of the meeting, as noted down by Dr. QX, which was sent to the parties on 2 December 2018. The document clearly stated that if the terms outlined were not accepted, then the husband would pursue a contested divorce. Those terms included the payment by the husband of rent on a 120m 2 apartment for 3 years, with a possible extension for a further 2 years which may be negotiated ‘if the cooperation regarding the children remains positive’. The husband was also offering ‘voluntary payments’ at the rate of €3,000pcm for 3 years, again with a possible 2-year extension ‘depending on the quality of cooperation in matters involving the children’. The wife’s work with Company E would continue through April 2019, with further work ‘depending on her ability to collaborate successfully’ with others, including the husband. There was provision for her to use the parties’ Parisian property, but not that in Southern France. There was then a parenting agreement and schedules for ‘custody and visitation’ and holidays. The wife had until March 2019 to find a new apartment, and was required to sign the divorce agreement in January of that year. The husband also offered to cover medical treatment costs only until the end of that March, after which time private medical insurance must be transferred into her name.

[35]The covering email from Dr. QX to the parties accompanying the document describes the protocol as one which ‘should form the basis for a good separation and the foundation for good parental cooperation’. The husband points out that the wife did in fact then instruct lawyers, that the terms eventually agreed on were not identical to those in the protocol, providing for example for a much longer term for rental payments (9 years), and an accepted 5 years for spousal maintenance. However, the overall parameters of the deal – with no capital provision, and fixed term provision for spousal maintenance and rent - were the same. I do accept that arrangements such as this are much more common in continental Europe, where couples have adopted a separate property regime, than is the case in this jurisdiction.

[36]The wife says that her mental and physical health deteriorated following the parties’ separation in 2018, and that by July 2019 she was being prescribed, by her treating psychiatrist Dr. QX, a multitude of strong medicines that she was taking regularly. There is a letter before me from Dr. OS, dated 6 January 2020 and so produced three years prior to the commencement of these proceedings, demonstrating that by the end of July 2019 the wife was taking a significant amount of medication including various antidepressants, antipsychotics and medicines for seizures and panic attacks. In the same document, it notes that the wife lost 11kg subsequent to the separation, weighing at her lowest 43kg. The medical evidence further demonstrates that by 5 September 2019, eight weeks after signing the German Deed on 5 July 2019, the wife was urgently referred by Dr. QX to the G Clinic in Berlin, the significance of which I will consider later.

[37]The husband says he was unaware that the wife was seriously unwell after the parties separated, despite accepting that he took her purported suicide threat made at the time seriously, and justified her reduced time with the children by reference to it. He tells me that she was presentable when she turned up to see the children and that the parties were perfectly able to co-parent. Dr. OS’s letter records that the wife expressed herself as being able to distance herself from her suicidal thoughts by referring to the children.

[38]The husband says that he cannot comment on what is in the medical report as he was unaware of it at the time. He does accept that the wife had psychological issues before and throughout the marriage. He says he was probably depressed himself during the post-separation period. The husband questions the letter from Dr OS, suggesting that the wife’s conditions were largely self-reported, and so should not be taken at face value. He more than once said that the wife had a history of using her upset to her advantage, and that it was hard to distinguish whether she was actually unwell or using it as a tool, notwithstanding the medical evidence. The husband told me that he considered that the wife had a borderline personality disorder during his oral evidence.

[39]Whilst I accept that the husband’s scepticism about the wife’s condition, and about her state of mind between 2018 and 2019, is genuinely held, I have no reason to challenge the written evidence before me from Dr. OS, and the record of the medications then being prescribed for the wife, in light of conditions which her treating doctors at the time were plainly satisfied that she was suffering from. I therefore accept the wife’s case generally about her condition over this period, her vulnerability, and her fears about the consequences if the divorce proceedings progressed to a contested hearing. Her evidence to me on these matters was patently honest and heartfelt. Indeed, there was further corroboration of her position from emails submitted in a document by Mr Horton on the husband’s behalf at the outset of the hearing.

[40]This new document included an excerpt from correspondence between Dr. QX, the wife’s lawyer and the husband’s lawyer, timed from 16 June 2019, three weeks before the parties signed the notarised deed on 5 July 2019. This correspondence includes an email from Dr. QX to the parties’ lawyers directly, not including either of the parties in the correspondence, which begins, ‘In Confidence Please!!’. It is remarkable to see the wife’s treating psychiatrist communicating with both parties’ lawyers, but without their knowledge, quite apart from the content of the email, which I will address.

[41]The wife raises serious concerns about Dr. QX’s participation and role in the parties’ divorce. Dr. QX was the personal treating psychiatrist to the wife, as well at times treating the husband, members of the wife’s family and the husband’s family, including single sessions and family therapy sessions. She also acted as a mediator, even though she was a qualified psychiatrist, and was acting as such to the parties at the time. The wife adds that Dr. QX would regularly email her family, without informing her, telling them about what she had said in private sessions.

[42]The email from Dr. QX includes the following passages (translated): - “I have a lot to do to positively influence the mood of both of them. Mrs. TY increasingly feels like starting the argument all over again and renewing, expanding and providing witnesses at all sorts of events with her accusations against Mr. XA that he is unfair, self-righteous, unsympathetic and unsuitable as a father in his collaboration. We already saw this trend in the office after the "Toilet Event” …” - “In light of this climate change, Mr. XA is starting to threaten divorce in court, and I’m trying hard to stop him because it’s just nonsensical as Ms. TY’s strange approach. He’ll keep quiet until the beginning of July, he’s promised. Ms. TY begins to act again with physical complaints, weight loss and emergency interventions by emergency doctors and to underline her point of view. I therefore request you collect the signatures, because otherwise the agitation at the risk of her health and anorexic symptoms will endanger Mrs. TY’s health. I have to be in Berlin by the beginning of July at the latest… to do another reality check with both of them and get them both to work together. This timeline is very important to me to avoid any emergencies and outbursts from both sides. Please treat this information as a cry for help to the timeline and above all confidentiality. It would be very counter-productive if either side were to take note of this information and this request; I ask for a response.” - The reply from the wife’s lawyer, Ms. ML, includes:

“I believe that I have Ms TY under control… Information from you… will remain between the three of us.”

[43]The events of 5 July 2019. Dr. QX attended the meeting at which the parties signed the notarised German Deed on 5 July 2019, along with the parties’ lawyer and the notary. The wife’s mother was waiting outside the meeting. The wife says that at this meeting she was very distressed, that she was crying and had a panic attack. The wife adds that Dr. QX had administered Xanax before the meeting and, after she had a fresh distressed episode at the beginning of the meeting, that she and Dr. QX went outside the room and Dr. QX forcibly administered her with two further Xanax pills in the toilet. The wife says such situations had happened before with Dr. QX, one such time being the incident referred to as the ‘Event am Klo’ or the ‘toilet event’ in the email sent by Dr. QX to the lawyers on 16 June 2019. The wife says there was urgency amongst the professionals for the separation deed to be signed, as demonstrated by Dr. QX going to the family home to retrieve the wife’s passport during the meeting as it had been forgotten.

[44]The husband acknowledges that the wife was somewhat upset, and he accepts that the passport had been left at the family home; however, he says he cannot comment and does not know if the wife was given pills by Dr. QX. He does accept that the wife and Dr. QX left the meeting room for a couple of minutes at the beginning of the meeting. Whilst I consider that both parties were seeking to an extent to paint the events of that day in a way that best suited their respective narratives, in broad terms I accept the wife’s evidence about her state and the actions of Dr. QX. I am supported in this by the 6 January 2020 letter from the G Clinic, which notes that upon her admission in September 2019 the wife was “urgently recommended partial inpatient treatment” and was an outpatient from 16 September until 19 December 2019, save for a short gap of 10 days during this period, which strongly suggests that the wife’s mental health, at least soon after the time that the deed was signed, had deteriorated significantly, making it unlikely that she was not suffering considerably in early July.

[45]The medical evidence details that by September 2019 the wife was suffering from a major depressive episode and an anxiety disorder with panic attacks escalating to hyperventilation tetany. The wife was still having treatment as an outpatient at the clinic when the parties attended the German Court for the German Deed to be approved on the 10 December 2019, which was also noted in the letter from the clinic. She says that she was medicated when she attended Court on that day.

[46]It is accepted that the wife signed the German Deed but that, as mentioned above, she was then referred by Dr. QX eight weeks later to a psychiatric clinic. The wife says in the months leading up to the German Court hearing in December 2019, and whilst she was an outpatient at the G Clinic, that she expressed her concerns about the situation to Dr. QX, however that she was told it would all be over soon and repeatedly felt pressured to allow the process to proceed. The wife says that her primary focus and concern was contact with the children, and in evidence stated she would have, “signed my own death” to ensure she could see them.

[47]These accounts would cause me serious concern about both the role of the lawyers, as well as that of Dr. QX, if this were an application for financial remedy proceeding before this court in the normal way, and one in which the husband was relying on the separation deed simply as an Edgar agreement. I am reminded of the different but in some ways parallel circumstances in the case of NA v MA

[2006] EWHC 2900 (Fam)

. In that case, about a post-nuptial, rather than a separation agreement, Baron J came to the following conclusions:

‘128) For the avoidance of doubt, I find that this post nuptial agreement was offered on a take it or leave it basis at the time of and in the throes of emotional melt down and was stipulated to be the only way in which to save this marriage. It was also in play at a time when the parties were living in the same household, were habitually arguing and where the Wife (on everyone's evidence) was being subject to constant questioning and arguments about her affair. There was no time for careful reflection. The Wife informed the Court that the Husband pressurised and bullied her to sign from the outset. I accept her evidence on that point. Once he had decided to countenance the possibility of a reconciliation, I have no doubt that he told her that she must abide by all his conditions without demur and she must sign the deal as it arrived. He made it clear that, if she did not, there would be no reconciliation. As the Husband knew that she wanted above all else to save the marriage, felt overwhelmingly guilty and did not want her affair to destroy her or children's lives, his ultimatum about the agreement being a pre-requisite to the marriage continuing put her under severe, undue and unacceptable pressure. I find that she was given no effective choice and her free will was overborne. I am absolutely satisfied that the Husband made his position abundantly clear to her whenever the matter was raised. He used his dominant position both emotional and financial (in the sense that he knew she had no financial independence) to ensure that she felt that she had no alternative but to sign the agreement…She signed the agreement …only because she knew that he meant it and she had no realistic alternative if she wanted to return to her home (to be with her children) and to give the marriage a further chance. 129) The Law…characterises this type of behaviour as undue pressure and undue influence. For these reasons I will not implement the terms of this agreement. 130) In addition, as I have found, the agreement was not premised on fairness, it was calculated by the Husband and his commercial lawyer on the basis of what the Husband was willing to provide… As a result of the Husband's behaviour towards the Wife, there was no proper opportunity to negotiate its terms. For these additional reasons it would be wholly unfair it implement its terms. It would also be unfair to use them as a starting point with which to judge the fairness of any award.’

[48]However, I must also remind myself that this is not that case, and that here, whatever concerns an English judge may have about the circumstances prevailing when the German Deed was negotiated and signed, we have clear and accepted expert evidence that in Germany the German Deed constitutes a valid and binding instrument for the purposes of Art. 17 of the Maintenance Regulation, albeit one which may be subject to variation in the event that circumstances change.

[49]Dr Maetschke-Biersack, however, does make clear that the Deed itself could have been the subject of a challenge in Germany, whilst the wife remained habitually resident there, if either the deed was found to be unfair and not reasonable at the time that it was entered into, or if at the time of the divorce the circumstances previously prevailing had changed. She points out that the burden of proof for such a challenge would be high, and solely with the wife. She also stresses that the fact of the wife’s representation by a specialist family lawyer during the negotiations, over several months, would be given ‘great weight’ by the court, in determining whether there was any ‘contractual imbalance’.

[50]The expert then goes on to consider other specific aspects of the German Deed. She does not find that the waiver of pension rights which the deed contains to be unreasonable, given the assertion that both can provide for their respective old ages, and there was no pension right accrual in the marriage. As to whether the partial waiver of spousal maintenance could be considered fair and reasonable, she says that this would mainly depend on the ‘income situation and health conditions of the parties as well as the future expectancies in this regard’. She goes on:

‘If the wife was not able to provide for herself due to her health problems, such would need to be taken into consideration.’

Later, dealing with the potential extension of maintenance (should it be negotiated), she added that ‘It could indicate that the spouses did themselves see a risk that the partial waiver as declared in the Separation Deed would not be upheld in the court’.

[51]Dr Maetschke-Biersack adds that the rules for income provision under Austrian law may also be relevant to the reasonableness of the provision agreed, given that was law under which the pre-nuptial agreement was drafted. She is not troubled by the issue over the date of separation in the absence of more detailed disclosure. As to any argument about duress or undue influence, the expert again points out that the fact of the wife’s representation ‘would be given strong weight by the court’. As to her medical condition, the expert opined that:

‘the wife’s claim that she was heavily influences by medication… would give rise to find her declarations invalid only if her freedom of will was impaired… [which] must be proven by medical expertise… The burden of proof is high and would be with the wife… mental illnesses does not necessarily constitute legal incapacity… nor in the influence of even heavy medication itself and without further evidence sufficient to assume legal incapacity. Finally from the deed it does not appear that the notary has had any concerns about the full legal capacity of the wife when entering into the deed.’

I take from all of this that the expert did not form the view that any such challenge would be very likely to succeed.

[52]I also have to note that although the wife, in December 2021, had instructed her subsequently appointed German lawyer to write a letter indicating that a challenge in Germany to the provisions of the deed would be made, no such proceedings were ever initiated there. A challenge was only eventually issued in this jurisdiction, in March 2023, on the basis that the husband had nearly two years earlier relocated here to London. This was before the German Court had given leave for the wife to move here with the parties’ children, but while that decision was pending, and she did in fact move just a few weeks later after that leave had been given.

[53]Mr. Horton accuses the wife of naked forum shopping by waiting so long before issuing her challenge, whilst Mrs. Carew Pole contends that the delay was down to the interjection of the COVID pandemic, and what she characterises as a ‘blizzard’ of children proceedings in Germany, arising out of the lack of regular arrangements for the husband to spend time with the parties’ children after he had come to London, and then the wife’s own application to relocate. Certainly, that passage of time is a significant one in determining the extent to which it is now fair to both of these parties to conduct a wholescale review of the provision which was made by the German Deed in 2019, ab initio.

The Law

[54]The process for the courts to navigate in cases under the Matrimonial and Family Proceedings Act 1984 (‘the 1984 Act’) was charted carefully by Lord Collins of Mapesbury in the Supreme Court in Agbaje v Agbaje

[2010] 1 AC 628

, where he set out that:

‘71. …the proper approach to Part III simply depends on a careful application of sections 16, 17 and 18 in the light of the legislative purpose, which was the alleviation of the adverse consequences of no, or no adequate, financial provision being made by a foreign court in a situation where there were substantial connections with England. There are two, interrelated, duties of the court before making an order under Part III. The first is to consider whether England and Wales is the appropriate venue for the application: section 16(1). The second is to consider whether an order should be made under section 17 having regard to the matters in section 18. There are two reasons why the duties are interrelated. First, neither section 16(2) nor section 18(2)(3) refers to an exhaustive list of matters to be taken into account. Section 16(1) directs the court to have regard to “all the circumstances of the case” and section 16(2) refers the court to certain matters “in particular”. Second, some of the matters to be considered under section 16 may be relevant under section 18, and vice versa. An obvious example would be that section 16(2)(e) refers the court to the financial provision which has been made by the foreign court. Plainly that would be relevant under section 18. So also the direction in section 18(6) to the court, in considering the financial resources of a party, to have regard to whether an order of a foreign court has been complied with would plainly be relevant in considering whether England is the appropriate venue. 72. It is not the purpose of Part III to allow a spouse (usually, in current conditions, the wife) with some English connections to make an application in England to take advantage of what may well be the more generous approach in England to financial provision, particularly in so-called big-money cases. There is no condition of exceptionality for the purposes of section 16, but it will not usually be a case for an order under Part III where the wife had a right to apply for financial relief under the foreign law, and an award was made in the foreign country. In such cases mere disparity between that award and what would be awarded on an English divorce will certainly be insufficient to trigger the application of Part III. Nor is hardship or injustice (much less serious injustice) a condition of the exercise of the jurisdiction, but if either factor is present, it may make it appropriate, in the light of all the circumstances, for an order to be made, and may affect the nature of the provision ordered. Of course, the court will not lightly characterise foreign law, or the order of a foreign court, as unjust. 73. The amount of financial provision will depend on all the circumstances of the case and there is no rule that it should be the minimum amount required to overcome injustice. The following general principles should be applied. First, primary consideration must be given to the welfare of any children of the marriage. This can cut both ways as the children may be being supported by the foreign spouse. Second, it will never be appropriate to make an order which gives the claimant more than she or he would have been awarded had all proceedings taken place within this jurisdiction. Third, where possible the order should have the result that provision is made for the reasonable needs of each spouse. Subject to these principles, the court has a broad discretion. The reasons why it was appropriate for an order to be made in England are among the circumstances to be taken into account in deciding what order should be made.’

[55]I intend to apply those principles in what follows. I first turn to the provisions of the 1984 Act that I must apply in determining what order to make on the wife’s applications before me. Notwithstanding the leave already given, I first have to satisfy myself that this jurisdiction is the appropriate venue for the application, and specifically, under s.16(1): Before making an order for financial relief the court shall consider whether in all the circumstances of the case it would be appropriate for such an order to be made by a court in England and Wales, and if the court is not satisfied that it would be appropriate, the court shall dismiss the application.

[56]By s.16(2): (2). The court shall in particular have regard to the following matters—(a) the connection which the parties to the marriage have with England and Wales;

(b) the connection which those parties have with the country in which the marriage was dissolved or annulled or in which they were legally separated;

(d) any financial benefit which the applicant or a child of the family has received, or is likely to receive, in consequence of the divorce, annulment or legal separation, by virtue of any agreement or the operation of the law of a country outside England and Wales;

(e) in a case where an order has been made by a court in a country outside England and Wales requiring the other party to the marriage to make any payment or transfer any property for the benefit of the applicant or a child of the family, the financial relief given by the order and the extent to which the order has been complied with or is likely to be complied with;

(f) any right which the applicant has, or has had, to apply for financial relief from the other party to the marriage under the law of any country outside England and Wales and if the applicant has omitted to exercise that right the reason for that omission;

(g) the availability in England and Wales of any property in respect of which an order under this Part of this Act in favour of the applicant could be made;

(h) the extent to which any order made under this Part of this Act is likely to be enforceable;

(i) the length of time which has elapsed since the date of the divorce, annulment or legal separation.

[57]Considering these matters in turn, the first is the connection which the parties to the marriage have to England and Wales. Whilst it is significant that during the marriage itself, the connection which the parties had was at best tenuous, it is also important that the final wording of the 1984 Act did not follow the earlier provisional recommendation of the Law Commission in their Working Paper (1980: No. 77) at paragraph 52, and make reference to the connection which the marriage itself had to this jurisdiction, but only that of the parties. Whilst at the point of their divorce, the parties had much stronger connections with other European countries, in particular Germany where they were both then resident, they are now clearly both habitually resident here, and the German courts in consequence would no longer have jurisdiction to deal with any questions to do with the regulation of their financial relationship, as Dr. Maetschke-Biersack confirms in her report.

[58]The country in which the marriage was dissolved was Germany, but the expert’s conclusion now is that:

‘presumed that both spouses are no longer habitually resident in Germany, from a German legal perspective German courts would no longer be competent to entertain an application for maintenance (Art.3 EU Maintenance Regulation) nor for claims for property/capital claims Art.6 EU Property Regulation)’

. She continued:

‘Same is true for challenging the separation deed which would usually be dealt with as a preliminary question when a claim is brought to the court by one of the spouses…’

. So, there is no longer a route available for the wife to seek any further or different provision in the country where the couple were divorced, and the connections which they had there have now been severed, for both of them, in the years since 2019. Neither party is a national of that country.

[59]As to connections with third countries, the husband is an Austrian national, the couple married there, and the Austrian Agreement was made subject to Austrian law. However, by their subsequent German divorce they agreed that German law would override the original Austrian provision, and neither of them now resides there. The wife is a French national, but like the husband she too now habitually resides in London, with the children. Neither jurisdiction therefore enjoys any particular advantage of fairness over England and Wales to resolve the current dispute.

[60]As explained, the husband complains about the wife’s motivation for coming to this country, but in circumstances where she came with the express permission of the German court to bring the children, and brought them to the jurisdiction where he himself had chosen to make his home two years previously, the reality now is that both parties and the children are living here. Accordingly, there is no other obvious jurisdiction in which the wife should now more appropriately be claiming. It is therefore in this jurisdiction and in this court, that the question of whether any further financial provision should be made between the parties must fairly be determined. That the parties’ connections here have been formed only some years after their separation may, however, remain a relevant consideration when considering the quantum of relief which is now appropriate.

[61]The remaining factors in s.16 of the 1984 Act also remain highly relevant. The quantum and structure of the benefit which the wife has already received in Germany, under an agreed document that operates as a binding instrument in German law, must be fully taken into account. There is no suggestion that the husband has not fully complied with his obligations under the German Deed, which I accept must be treated as equivalent to a court order. I have well in mind that whilst it would have been open to the wife to challenge the deed before she left Germany, she ultimately elected not to do so.

[62]I must consider under s.16(2)(f) the reason for that omission on her part. Whilst she portrays her move to England as one which was not motivated by financial reasons, and one which should have served to make relations between the children and their father easier, and for own medical needs, I am satisfied that she was aware, before her departure from Germany, that she would be able to make an application under Part III, and indeed she had done so before her departure from Germany. Her precipitate departure having secured leave, before school places could be confirmed in the absence of parental agreement, and before the husband could launch any appeal against the decision, all have the feel of a party determined to secure jurisdiction, rather than one acting solely with her children’s interests in mind. Consequently, I am satisfied that the fact of the Part III jurisdiction and its possible availability for her here, to a much greater extent than it might have been had she remained in Germany whilst prosecuting her claim, at the very least played a significant part in her thought processes in deciding to move to this jurisdiction.

[63]I will consider the availability of property later – it is not suggested by Mr. Horton that an order should not be made on that ground – but deal finally here with the factor in s.16(2)(i) – the length of time which has elapsed since the divorce or separation. This application was made by her in March 2023. The parties’ marriage ended in December 2019, some 4 ½ years ago, and over 3 years before her application for permission. The wife’s decision to apparently accept the position created under the Deed at German law, despite instructing her German lawyers in 2021 to raise the issue but then not pursue it, does make any attempt by her to now treat her application before this court as a financial remedy application on a clean sheet of paper, very difficult to justify. This is so, even if the circumstances surrounding her agreement to and the drafting of the deed in 2019 look disconcerting to the English legal eye. Mr. Horton KC draws the parallel with the set aside application in the case of Burns v Burns

[2004] EWCA Civ 1258

, where a similar length of delay was deemed fatal.

[64]Further, although the wife cites the COVID-19 pandemic, and ‘all-consuming’ proceedings in relation to the children as the principal reasons for her delay, she was able to instruct her German lawyers to consider proceedings there in December 2021, but not to pursue them. It was not until the end of the following year that she first indicated an intention to seek permission to move to London with the children. Her case is that her move to London was not motivated by the potential financial consequences if her application to relocate to this jurisdiction was successful, and she then received permission to apply under Part III. Her failure to proceed in Germany would therefore be even less explicable. The impact of COVID and the children proceedings are not therefore a sufficient excuse for her delay.

[65]Whatever advice the wife may have received in Germany, if she chose to accept the provision there without ultimately raising the available challenge, should she now after the passage of time and her move to this jurisdiction, be able to launch a root and branch attack on the underlying fairness of the German Deed as Mrs. Carew Pole KC seeks to do on her behalf? This, in the context especially of the German Deed standing as a binding authentic instrument under German law within the meaning of Art.2(1) of the Maintenance Regulation, as her legal team accept. I am satisfied that, however an English Court might have treated the German Deed, the fact of its status in Germany and the applicability of the Maintenance Regulation means that it is not open now to me to unpick its original terms, as I will explain.

[66]Mr. Horton KC’s position for the husband is that the only permissible use of Part III in the context of this case is for an order to be made which modifies the periodical provision provided by the German Deed, in the light of changed circumstances. It is clear from the Deed itself that such variation in due course was at least within the parties’ contemplation, even if the document was elsewhere expressed to be a comprehensive settlement between them. It recorded that: ‘both spouses… assume that the wife will continue to be able to earn her own income in the future, and that with the increasing age of the joint children there is also the [possibility] of increasing this income’, and they then: ‘waive any right to postnuptial maintenance other then the right provided for in this agreement’.

[67]The parties also declare that they are in ‘secure income and property situations’. However, irrespective of the maintenance waiver they express, as explained above, that if ‘they were to negotiate further maintenance payments from 1.09.2024’ they agree that 50% of the wife’s own income then earned would be credited against it.

[68]Mr. Horton roundly condemns any argument that the changes of circumstances which have occurred since 2019 are sufficient to justify any radical revision of the terms of the German Deed. He points out that the wife’s decision to move with the children to an expensive quarter of London was one which she has taken entirely of her own motion, and should not justify any radical upgrade to the previous level of provision agreed between them. He also challenges the available medical evidence about her ability to work, which I will consider below. He states that the provision made between them for post-separation maintenance was generous under German law, and I accept that neither the lawyers nor the notary at any stage appeared perturbed by the provisions, even though the wife was clearly struggling to cope with the process at the time.

[69]Having said that, of course, it does not mean that if the wife now establishes that she and the children have unmet needs for income and housing which this court is satisfied that it is fair in all of the circumstances that the husband should provide for, that it will not so order.

[70]I accept that, for the purposes of this case, to which the Maintenance Regulation applies, I must avoid acting in a way which is contrary to its terms. By Art.42, I cannot act so as to review the substance of the original decision. By Art.48, the German Deed is enforceable here as it is in Germany. By Art.21, a decision which has the effect of modifying an earlier decision on maintenance on the basis of changed circumstances shall not be considered an irreconcilable decision, such that a debtor could apply to prevent its enforcement. This means that, in effect, a variation of the provisions contained in the German Deed is permissible in the event of a sufficient change of circumstances, but that a reconsideration of the fairness of the original provision is not. Discussion

[71]In all of the factual circumstances which I have outlined above, I see no sound basis upon which I can, or should, therefore now effectively set aside the German Deed and make a substantial financial remedy award to the wife on the principles applied in this jurisdiction, regardless of the terms of the German Deed already determined. Permission granted under Part III of the 1984 Act has never given the courts a free hand to start afresh when considering any appropriate relief, but rather it is the case that the orders already made abroad, the extent that they have been complied with, and the availability of further claims in the other jurisdictions have all to be taken into account once more before any final outcome is arrived at (s.16(2)(e/f) of the 1984 Act).

[72]Whilst I accept that I cannot review the substance of the original instrument, following Art.42 of the Maintenance Regulation, I am satisfied that that decision itself did not provide for an immutable clean break in any circumstances between the parties. Had it done so, then the question of whether the use of Part III would have remained circumscribed would have been a harder one to determine. As it is, I am entirely persuaded that there has been a sufficient change of circumstances for these parties, and in particular for the wife and children, since that which was recorded in 2019, such that a substantial variation in the terms of the maintenance provision set out is now justified. I have formed this view for the following reasons:

[73]The medical evidence. Mr Horton invites me to reject the evidence of Professor H as to the wife’s lack of current earning capacity. However, I can find no proper reason to do so in circumstances it is the only expert evidence before me on the issue. Under the heading ‘Impact on Work and Daily Life’, the Professor stated:

‘TY’s combination of chronic pain, cognitive dysfunction, and physical limitations significantly impacts her ability to work both now and in the future. Her condition prevents her from performing any work that requires prolonged physical activity or mental focus. TY is unable to sit, stand, or walk for extended periods due to the joint instability, fatigue, and pain caused by Condition A and Condition B . These conditions make it impossible for her to engage in any physically demanding tasks or positions, such as those requiring standing or walking for long hours. Additionally, her cognitive impairments, including brain fog and memory issues, further limit her capacity to perform tasks that demand mental concentration, such as office work, problem-solving, or decision-making. These cognitive challenges are compounded by chronic fatigue and the ongoing need for medical treatments, which contribute to her inability to maintain a consistent work schedule. TY’s symptoms are not expected to improve over time due to the progressive nature of some of her conditions, particularly as the body ages and connective tissue becomes more vulnerable. As a result, her physical and mental capabilities will likely decline further, making any form of employment increasingly difficult and ultimately unsustainable. Therefore, TY’s ability to return to work in the future is not feasible given the chronic nature of her health issues and the expected progression of her conditions. Despite her efforts to adapt and manage her conditions with medical treatment and support, TY remains unable to engage in work, and her disability is expected to be permanent.’

[74]In reply to searching questions asked and evidence of activity supplied by the husband’s solicitors, he responded that:

‘Ms TY unfortunately has had a substantial deterioration in her physical abilities after her pregnancies due to the additional diseases of postural or static tachycardia syndrome which leads to a reduction in blood pressure on standing vertically, as well as causing tachycardia of the heart and this will have led to a substantial deterioration of her ability to work over the past few years, and this is the reason for my statement about her being unable to work. The Condition B was diagnosed in 2017/18 by Prof J. This leads to her having pre-syncope and fainting which can lead to falls and dislocations which more likely with the connective tissue disorder of Condition A. She also has chronic fatigue, abnormal peripheral sensation and cognitive impairment due to “brain fog”.’

[75]Mr. Horton KC criticises Professor H for having recorded in his report that the wife is suffering from Post-Traumatic Stress Disorder (‘PTSD’), by reason of physical, psychological and emotional abuse suffered by her during the marriage and subsequently in the divorce process. He also records that the wife is actively managing her condition to ensure that she remains stable in her daily life. Whilst I cannot and do not make any findings about this, I equally cannot accept that the report as a whole is thereby rendered ‘devoid of any evidential value’ as Mr. Horton suggests. The suggestion of PTSD does not form any part of the Professor’s reasoning or justification for his conclusions about the progression of the wife’s diseases, and their impact upon her earning capacity, which I accept.

[76]In circumstances where the parties’ agreement in 2019 was made upon the express statement that they ‘assumed’ that the wife would continue to be able to earn her own income in the future, increasing as the children got older, but that the possibility of negotiation about extending the term of maintenance remained in their minds, that ‘assumption’ has been found to be misplaced. I am clear that the wife’s current, and likely future, inability to work does constitute a sufficient change of circumstances to justify a reconsideration of the terms of the maintenance provision in the German Deed.

[77]Residence in London. Further, whilst it is right that the wife has chosen to move to London with the children, a move which the husband actively opposed through the German courts, I recognise that the move was one which was judicially permitted. It would be artificial in the extreme to try to calculate the wife’s needs and those of the children as if they were all still living in Berlin, albeit in fairness to the husband, I acknowledge that the fact of her unilateral decision to relocate with the children will remain relevant in considering the generosity by which the family’s needs in London should be met.

[78]Section 18. In addition to the matters under s. 16 of the 1984 Act, I also pay full regard to all of the matters included under s. 18 of the Act, which imports principally those matters set out in s.25(2) & (3), and s.25A, of the Matrimonial Causes Act 1973. And importantly here, amongst all of the circumstances of the case, I give first consideration to the welfare of the minor children of the family as required by s.18(2) of the 1984 Act.

[79]The husband acknowledged this obligation to some extent in his open offer made to compromise these proceedings on 27 March 2025. He offered to purchase a property for the wife and children with a purchase price of up to £2.6m, which was however to remain in his sole name, acquired by way of a mortgage for which he would be responsible. The wife would be permitted to remain in occupation of the property until 6 months after their younger daughter PA’s 18th birthday (1 February 2035), or when she ceases full-time secondary education, if later. The husband also offered child periodical payments at £5,000pcm per child (expanded along the lines of what Sir Nicholas Mostyn might have described as a Home Expenses Child Support Allowance, or ‘HECSA’), plus school fees and extras to the end of secondary education by way of provision for them. He offered no further provision for the wife.

[80]The wife’s position at trial has been as follows: She seeks a housing fund of £4.2m, to enable her to purchase a property at £3.5m, which she says is the value of the home which she and the children are currently renting in prime central London. She would like to stay there, albeit that after the conclusion of the hearing she received notice from the landlord that he would not be renewing her tenancy after September 2025. It appears that the capital value of the home offered by the husband was also predicated on what he had thought the value of that property to be, but that he had been looking at the wrong property. The difference between them appears to be between a house of c.2,200 sq. ft. (the wife), or 1,500 sq. ft. (the husband), but in the same central area.

[81]The wife also seeks a lump sum of capitalised maintenance of £2.3m, which she says will provide c.£80,000pa for her for the rest of her life, with a nominal order for herself to avoid CMS problems; a further lump sum of £992,955 to clear her current debts (over £900,000 of which are legal fees); a returnable lifetime fund of £755,607 to be made available to meet her future medical costs; and £50,000 for a car. She proposes lower child periodical payments at the rate of £3,500pcm per month, but educational provision to the conclusion of tertiary education. She also seeks a sharing of some contents from the parties’ former homes in Europe which the husband says is precluded by the terms of the German Deed.

[82]The Assets. I have to consider these positions against the assets currently held by the parties. On any view by reason of her significant debts and lack of capital receipt under the German Deed, the wife is currently in a net debt position. The husband’s financial position does appear to be declining, but he remains a wealthy man. Whereas the wife puts his personal wealth at over £30m, the husband calculates it to be only £16.7m in the Form ES2 prepared for the hearing. I broadly prefer his evidence about his financial position to that of the wife. Adding back a loan of £600,000 which he has made to a company which he owns jointly with his current wife, and which she runs, this would however take him to £17.3m, which is the figure that I will take for his net wealth for the purposes of considering the wife’s claims, and his ability to meet them.

[83]As to liquidity, Mr Horton on the husband’s behalf identifies a series of margin calls on the husband’s Company E stock, and the overall fall in the stock value in recent months. He points to the fact that he holds properties in France and in Berlin which have a gross value of c£10m, but which have been marketed for some time without any sign of sale. There are other venture capital and real estate investments which may not be realisable for another 5 years. His income position is currently uncertain, after a recent job opportunity was withdrawn unexpectedly after what he though was a promising start. I accept that liquidity is currently at a premium for him.

[84]Costs. The costs of these proceedings on both sides have been significant, but especially those of the wife. Her Form H1 shows a total amount spent of some £1,406,530.91, which appears wholly disproportionate in the circumstances outlined above, where there has always been a real risk that her recovery would be limited by applicability of the Maintenance Regulation, and the husband has offered no outright provision for her at all. Of that some £637,209.69 has been paid, mostly by the husband under the various LSPO orders which have been made. For his part, he has incurred bills of £533,210 of which he has paid £389,542. The fact that the wife’s claim was always most likely to be determined on a needs basis, however, does throw her incurred costs as identified above into sharp focus.

[85]Sharing. I have of course considered whether or not it might be open to the wife to make a sharing claim, which was expressly left open by Moor J when reconfirming that the wife should have permission to bring this application in TY v XA

[2024] EWFC 96

at [71], where he said:

‘If the Husband was to satisfy the court that a claim for maintenance is excluded by the Maintenance Regulation and that "maintenance" in this context includes the provision of capital for housing (Van den Boogard v Laumen C-220/95), the court should retain the ability to deal with this by a modest sharing award, if it felt it right to do so. It would be entirely wrong for me to impose a "non-sharing" condition on the basis that it is a "needs" claim, if the "needs" claim is then itself excluded. I have decided, for this reason alone, that it would be wrong to exclude sharing.’

[86]He was here echoing the reminder provided by King LJ in Brack v Brack

[2018] EWCA Civ 2862

at [103] where she said that: ‘Even where there is an effective prenuptial agreement, the court remains under an obligation to take into account all the factors found in s25(2) MCA 1973, together with a proper consideration of all the circumstances, the first consideration being the welfare of any children. Such an approach may, albeit unusually, lead the court in its search for a fair outcome, to make an order which, contrary to the terms of an agreement, provides a settlement for the wife in excess of her needs. It should also be recognised that even in a case where the court considers a needs-based approach to be fair, the court will… retain a degree of latitude when it comes to deciding on the level of generosity or frugality which should appropriately be brought to the assessment of those needs’.

[87]Two matters arise from this. Firstly, whether a sharing claim might be appropriate in the particular circumstances following an agreement should always be in the Court’s mind. I am, however, satisfied in this case that such a claim is neither properly available nor necessary to do justice in all of the circumstances. To look now to provide a share in the assets currently held by the husband would be to review the substance of the German Deed. Even if that course were open, as I am satisfied that it is not, it is not required to produce a just outcome for both parties, notwithstanding the circumstances of the German Deed’s creation.

[88]Throughout this marriage and since its ending, the parties have worked on the basis that the terms of either the Austrian Agreement, or later the terms of the German Deed, have determined the underlying basis upon which provision should be made, and both are very clearly needs-based. It would not be fair to the husband now, some years after the conclusion of the German proceedings, for the court undermine that established position, which is widely recognised as fair where the parties married, spent much of their married lives, and where they eventually divorced.

[89]Discretion. Secondly, the appropriate level at which the claimant’s needs should be met will always remain a matter for the court. Peel J made this clear in AH v BH

[2024] EWFC 125

at [50] when he said that:

‘...the Supreme Court in Radmacher and the Court of Appeal in Brack have emphasised the latitude and flexibility available to the judge to meet the demands of fairness in cases where a PMA has been entered into by the parties. That latitude and flexibility applies to the assessment of needs as much as it applies to the other s25 factors. Each case is a highly fact specific evaluation and discretionary exercise. There is a world of difference between, say; (i) a childless couple whose marriage lasts for 2 years, enjoying only a modest lifestyle, at the end of which one party might need no more than short term maintenance or a highly attenuated housing budget (perhaps restricted to time limited rental), and (ii) as here, a couple with 2 young children, where the impecunious wife will have the primary responsibility of bringing up the children for many years to come, leaving the already wealthy husband able to enjoy the fruits of his successful career.’

[90]The terms of the German Deed do not come close to properly addressing the wife’s needs in her current circumstances, where the parties’ previous expectations that she would be able to return to work with increasing levels of income have proved to be unfounded. The spousal maintenance term under the German Deed which was to run until 2024 has already in fact expired, and the housing provision is due to come to an end in 2028, only 3 years hence. The husband recognises that this must be extended, but rejects the evidence before me that I have accepted about the wife’s ability to work and to support herself going forward. He had not seen before he gave his oral evidence Professor H’s responses to his solicitors’ further questions, by which they put to him various pieces of recorded evidence which they had obtained secretly on his behalf, which showed the wife able to exercise and dance. Professor H remained clear that her condition would fluctuate, and his prognosis for her, which I accept, remained unchanged.

Outcome

[91]I am persuaded that the changed circumstances here have undermined the assumptions upon which the provision made by the German Deed was calculated, and that both an extension of the term for the provision of housing for the wife, and of spousal support for her, are therefore warranted, as well as a reconsideration of quantum. During the children’s minority, of course, provision for their housing must be a part of my first consideration. I do not consider that the amount of that housing provision should be calculated and awarded on an outright basis, however, as that was not the scheme of the German Deed, and it would not be fair to the husband to make outright capital provision to meet needs where none was previously contemplated. I am also satisfied that the wife’s housing needs will reduce once she is no longer the primary carer for the children.

[92]I am very clear, however, that the wife’s need for housing will extend for the rest of her life, and will not fairly come to an end on the majority of the children, given her inability to work and earn significantly going forward. Such income as she is able to generate from Airbnb lettings may assist with her daily outgoings, but will not suffice to meet her future needs for income and housing on their own. Whilst she has some prospect of inheritance, which might become available to provide or supplement her income position, I am clear that she will need security of tenure in a home. Whilst the children are with her, that home should be of a similar size to her current property, and an amount of rent sufficient to provide for such a property is therefore appropriate for the next 15 years, until both children will be comfortably independent. Thereafter, it will be appropriate for her to downsize to a smaller property of the size and cost of those that the husband is currently putting forward for her, with a correspondingly reducing rent.

[93]The wife’s housing provision should be on a lifetime basis, but it should be capitalised to provide the wife with a measure of security. If she chooses to buy a smaller property with the money now, that will be a matter for her, but the principle purpose of the amount is to provide a rental fund. I calculate that the appropriate sum for her can be rounded to £2,550,000. This is on the basis that she needs rent at her current level for the next 15 years, then reducing by a third for the rest of her life.

[94]As to maintenance payments, those for the children should be at the rate proposed by the wife, that is £3,500pcm, or £42,000 per year per child, until the end of secondary education, with 1/3 then remaining payable to the wife whilst they continue in tertiary education. The husband should be responsible for the children’s educational costs, including extras, until the end of tertiary education.

[95]The wife’s claims now are fairly limited to her needs alone, as is the scheme of the German Deed. The term for non-property related maintenance payments to the wife should however be extended, in the first instance until she attains the age of 55, and they should thereafter reduce to a nominal level. After careful consideration I am on balance satisfied that they should not be capitalised now, as the payments for housing provision will be. In determining not to order such a sum in lieu of the periodical payments order for the wife, I have of course fully considered my duties under s.25A(1) of the Matrimonial Causes Act 1973, as imported into Part III claims by s.18(3) of the 1984 Act.

[96]I have formed this view for a number of reasons: a. Firstly, whilst the wife will not foreseeably be in a position to generate all of her own income, the level of her future need is unclear. She may have future income from lettings. Her medical needs currently appear to running at the rate of about £3,000pcm, and as I will explain I am satisfied that they should be provided for by way of income payments, and not by way of a fund as sought by Mrs. Carew Pole KC. The wife’s needs may increase as she gets older, or they may stabilise or even reduce. At this time, Professor H’s evidence, set out above, is that:

‘her physical and mental capabilities will likely decline further, making any form of employment increasingly difficult and ultimately unsustainable.’

Notwithstanding that, any capitalisation now would be based upon assumptions which may simply not be born out. Whilst this is the situation in very many capitalisation cases, I am clear that the future for the wife here is more uncertain than most. Whilst a term capitalisation may be insufficient, I equally consider that to order a lifetime capitalisation at full rate of her prospective medical costs may well not be fair for the husband. b. Secondly, the original German Deed anticipated that when she received her inheritance the wife could reasonably be self-supporting – it is too early to anticipate now whether this will be the case, given the above referred to uncertainty and negative prognosis about her medical needs. However, whilst there should not be a clean break for her at age 55, I bear in mind that she is at present only aged 40. A lifetime maintenance obligation would be remarkable at that age after what was a 9-year marital relationship. If further support is justified in all of the circumstances then prevailing, I do not consider it unfair to the wife to have to make out her case for it then, after what will have been around 20 years of post-marriage support. I will therefore direct a reduction then to a nominal level until further order. At this stage the wife’s future requirements (save for housing) can be properly assessed and provided for, in light of her financial position and physical needs at the time. c. Thirdly, the German Deed did not anticipate any significant capitalisation of her claims – I consider that it would not be fair to the husband, given the wife’s decision not to challenge the Deed in Germany, the resultant passage of time and all of the other circumstances outlined above, to now impose a maintenance-based capitalisation as well as one to provide for housing need, which is clearer, more predictable, and fair in all of the circumstances. Of course, it will remain open to the parties by agreement to reach a figure for the capitalisation of the claim if they should both prefer to achieve a clean break now.

[97]As explained, the wife has sought for a fund to be provided to meet her medical expenses as required for the rest of her life. The husband, through Mr. Horton KC, complains that the bulk of the wife’s medical needs were met by the German policies of insurance which would still be in place had she remained there, and which he says she assured the German courts would still cover her in the event of a move to England. Given that has not in fact proved to be the case, he says that he should not be responsible for making those payments, and certainly not from a capitalised fund calculated to provide for the wife’s medical costs for the rest of her life. Whilst I understand his frustration in this regard, I am not satisfied that the wife’s medical needs should be left unprovided for going forward. I remind myself that she was regularly seeing Professor H in London during the marriage. Rather they should be paid for by her out of the general maintenance which she receives, which maintenance will be fixed at a level that, shorn of the medical costs element, will be more limited than the wife’s open case and so at a less generous level of assessment. She will however have a significant degree of flexibility.

[98]The wife’s 2023 budget, at over £1.3m. pa, is entirely out of kilter with any reasonable claim in the prevailing circumstances, as her open offer appears to tacitly acknowledge. Mrs. Carew Pole KC points to the husband’s own 2023 spending at £1.19m pa, to justify the figure, but of that £690,000 related to housing costs (mortgage and rental during renovation), and £240,000 went to the wife and children under Moor J’s interim order. The balance is some £260,000pa. In that context, the wife’s open position which would provide her with £84,000pa in child maintenance, £80,000pa for herself on a lifetime Duxbury, plus medical costs running at c.£36,000pa to be paid from a separate fund (total £200,000pa) becomes proportionate to the financial position of the husband as it was two years ago. For the time being, at least, I accept that his position has deteriorated. The husband is clearly however an able and resourceful man who is well capable of earning well again in future.

[99]On the basis that the wife’s medical needs have been running at c.£3,000pcm over the past 2 years, I consider that her maintenance payments in addition to the amount of that requirement should be at the ongoing level of £5,000pcm (£60,000pa). I am satisfied that this is a reasonable amount having regard to all of the circumstances outlined above, both in relation to the discussions leading up to the creation of the German Deed, the husband’s overall level of wealth, the time that has now passed and events in that time, and the wife’s realistic current needs, once her housing is provided for. The total annual periodical payments for the wife (including medical costs) will therefore be £96,000pa, and the global figure payable including the children’s maintenance will be £180,000pa. These should both be indexed in accordance with the CPI. I would add that on this basis, had I taken the view that a capitalisation of the wife’s income claims was appropriate, the figure for such a payment would have been in the sum of £1,200,000 (rounded).

[100]The costs of running a car will also have to be met by the wife from her maintenance provision. I am not satisfied that further capital provision to acquire a fairly expensive vehicle as is sought on her behalf is now merited, given the history recited above, and the absence of any such express provision in the German Deed.

[101]I consider that this sum is a fair amount for the wife in providing significantly more for her than the maintenance due under the German Deed (€2,100pcm), for a period of a further 15 years, and with the opportunity for her to apply to extend payments further if needed. It also provides her with secure housing for the rest of her life. I acknowledge that if this had been a purely English application, then it may be that the weight attributed to the German Deed would have been somewhat reduced. In those circumstances, the Austrian Agreement would have still suggested that a needs-based solution was indicated, but by no means certain, and the court would have been very likely to have imposed a capitalisation upon the parties. However, to have proceeded in this way would have been to have undermined the significance of the Maintenance Regulation and the status conferred on the Deed as a result. It also would not have fairly reflected the circumstances since 2019, and most particularly the time that has elapsed in the absence of any claim by the wife in Germany to challenge the German Deed.

[102]I have heard little evidence about the husband’s ability to make immediate payments of capital, that not having been part of his case, save in relation to the current liquidity issues identified by Mr Horton and set out above. Clearly, until the payment of the capitalised housing sum, he will have to continue in addition to the ordered maintenance to pay the rent on the wife’s current property. Given the husband’s overall wealth, however, I am entirely satisfied that he will be able to raise the sum required within a matter of months. Property holdings will eventually sell, and cannot be seen as truly illiquid. The level of maintenance that I have determined is in fact a slight reduction to the current interim amount, albeit that the husband must also provide a housing fund as indicated.

[103]Then wife’s debts from outstanding costs are significant, as explained. Set against an interest in property in Germany worth £240,000 on her figures – her only capital aside from the value of disputed chattels - she has a debt to Vardags, her solicitors in these proceedings, of c.£848,450, and a further sum of £70,966 owing to her German solicitor – a total of c.£920,000. If she were left to meet such a sum from her own resources, then the value of the housing fund which I have determined as required to meet her and the children’s needs would be significantly undermined. If she has to sell her property, then her ability to contribute to her own future support is significantly undermined.

[104]In those circumstances, Mrs. Carew Pole KC asks for an additional lump sum for her client to clear her debts, or essentially to provide for the husband to pay for the entirety of the costs incurred by her in these proceedings, in addition to his own, in circumstances where neither party’s open position has been close to the outcome of these proceedings that I have arrived at. I have decided on balance not to make such an award on the basis of an outright lump sum, but rather to hear argument from the parties about the fair incidence of the costs incurred in this case – whilst it seems inevitable that the wife will need some significant further provision if she is going to be able to meet her needs going forward, it is very hard at present to see how she can justify a payment of 100% of the substantial bill which she has run up – not far off three times that incurred by the husband. FPR 2010 r.28 and PD28A apply to these proceedings.

[105]I have also considered the possibility of making a separate order under Schedule 1 of the Children Act 1989, but remain satisfied that such an award is neither necessary or appropriate in this case. I agree with Mr. Horton KC that this is not a case where there are sufficiently exceptional circumstances to justify the use of the jurisdiction offered by Schedule 1, alongside a Part III order. In any event, I am making an order which I am satisfied will fully meet the children’s housing, income and educational needs throughout their minority.

[106]I have finally not been addressed in any detail about the basis upon which the wife seeks to argue that there should now be a substantial reallocation to her of any chattels, although I note in the Form ES2 that there are figures entered for the wife of £1.7m in shared contents, derived from her Form E, as well as a further £190,000 in furniture belonging to her at the husband’s properties. The husband’s case is that these issues have all been determined under the auspices of the German Deed and cannot now be reopened, and in the absence of any subsequent agreement between the parties, I agree with him. This is especially so, given the time that has now passed.

[107]That is my judgment.

Cited in 1 later judgment

TY v XA (No. 4) 2025