LIN v PAR [2025] EWFC 401

[2025] EWFC 401Case No 1686-6634-1947-5730
IN THE FAMILY COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21/11/2025
Before
MR JUSTICE PEEL
Between
LINApplicantPARRespondent
Justin Warshaw KC and Joshua Viney (instructed by Hamblin Family Law LLP) for ApplicantPatrick Chamberlayne KC and Laura Heaton (instructed by Camilla Baldwin Solicitors) for RespondentHearing Hearing dates: 27-30 October 2025
Approved JudgmentThis judgment was handed down remotely at 10.30am on 21 November 2025 by circulation to the parties or their representatives by e-mail and by release to the National Archives..............................MR JUSTICE PEELThis judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the parties must be strictly preserved. All persons, including representatives of the media and legal bloggers, must ensure that this condition is strictly complied with. Failure to do so may be a contempt of court.Mr Justice Peel :

Introduction

[1]In these financial remedy proceedings, I shall refer to the parties as “W” (Wife) and “H” (Husband) although Decree Absolute was pronounced on 6 February 2002, nearly 24 years ago.[2]This is a highly unusual case. After a childless 9 year marriage, the parties separated in 2000. They reached (as I find) a Xydhias financial agreement in October 2001 which was incorporated in a draft consent order.[3]For whatever reason, the draft consent order was not sent to the court to be approved and sealed in the usual way. However, both H and W thought it had been formalised, and acted upon it. The assets, which were relatively modest, were divided equally in accordance with the agreement which provided for a clean break. On the face of it, there was nothing remarkable about the process leading to the agreement and its subsequent implementation.[4]Fast forward to 2022, over twenty years later. They had led their separate lives, and had not been in touch since 2011. H had remarried, and he and his wife have two children. W had not remarried and has no children. They had each pursued separate careers. H was a successful and wealthy businessman. W was an artist running her own creative arts business. She had been far less successful in financial terms and had negligible assets. Neither had any reason to think that the financial agreement had not been determinative.[5]In 2022, W was approached by Mr TP. He became her friend, confidant and adviser. His motives were improper, even malicious, but W was manipulated into believing that he was acting in her interests. Mr TP’s intent was to find out as much as possible about H’s finances through the disclosure process. He researched H and his business background because he wanted to cause H, and H’s employer, financial harm. He led W to believe that she had been duped by H in 2001/2002. He encouraged W to take legal advice. Her lawyers discovered that no final order had ever been made. So it was that W, with Mr TP’s active encouragement, decided to bring a financial remedies application decades after they had separated and resolved their finances.[6]It came as, to put it mildly, something of a surprise for H to receive out of the blue on 15 June 2023 a letter from W’s then solicitors, Dawson Cornwell, saying they had been instructed by W who sought £10 million for what were described as her “interim needs”, full disclosure of H’s wealth and a non disposal undertaking.[7]On 15 June 2023, W filed a Form A which was issued on 31 July 2023. Over two years later the matter comes for trial before me.[8]It is W’s case that: i) There was material non disclosure by H at the time of the agreement which means that it should be disregarded entirely. ii) Further or alternatively, the 2001 agreement was entered into by W under undue pressure which reduces the weight to be attached to it. iii) Further or alternatively, the agreement was not implemented and accordingly carries reduced weight. iv) The court has a duty (whether any or all of the above are found in W’s favour or not) to consider the overall fairness of the case in accordance with s25. In all the circumstances, an award to provide W with housing and income needs, and which would be only a tiny fraction of H’s wealth, is fair.[9]It is H’s case that W should be held to the agreement, that they have led separate and independent lives for over twenty years, and that it would be unfair for him now to pay W any money.

The resources now

[10]This is not a case where computation has been significantly in issue.[11]W has assets of £100,375 (largely monies owed to her by her business). She has indebtedness of (-£489,555) of which the bulk is in respect of legal costs: i) -£92,623 owed to solicitors past and present. ii) -£160,000 owed to Mr TP for monies lent to assist her with legal fees (a further sum of £96,000 has been written off). iii) -£137,681 owed to Mr K (either an alias of Mr TP or an associate of him), again for legal fees.[12]I consider that the loans to Mr TP and Mr K are unlikely to be sought by Mr TP in W’s current straitened financial circumstances. In an email to W dated 28 October 2024, Mr TP said “I am not sure if you will ever be able to pay either of us back”. It is likely that Mr TP (whose role I will explore in more detail below) has washed himself of anything further to do with the case. If, however, W receives an award from H, that may change and she may be expected to pay monies back.[13]W’s stated income has been the equivalnt of about £7,500 per month drawn from her art business, which has reduced this year to £3,750pm. She suggests that her earning capacity should be treated as about £50,000 pa net. In her Form E she referred to £96,000 net and in an income check for her landlord she put “£150,000 gross” in the relevant box. She has rented a property at c£48,000pa which suggests a degree of confidence in the future. I accept that as a result of her recent move to England from Country Y, there may be a transitional dip in income, and these proceedings probably have not allowed her to concentrate fully on her work. On balance, I am of the view that she is likely to return to an income closer to £100,000 net in the near future.[14]H acknowledges that his wealth exceeds £100 million. He relies upon the so called “millionaire’s defence”, recorded in a court order made by me on 10 October 2024, that he has the means and liquidity to meet W’s claim. It was agreed, and endorsed by me on the order, that H would not be required to file a Form E.[15]The same order recorded W’s position that her claim was capped at £5 million to be assessed solely by reference to needs; no case for a sharing claim was being put forward. Open proposals 16. Wife

Open proposals

[16]W on 2 June 2025 sought a sum of £5m. The proposal did not break down how that was calculated. Since her case was and remains referable solely to needs, it was perhaps remiss of her not to explain how she put the case.[17]W on 2 July 2025 sought £2.63m. Again, that figure was not broken down and particularised. The rationale appeared for the first time in her counsels’ Note lodged just before the final hearing which articulated a needs case as follows: i) £1.542m for housing (including purchase costs). ii) £340,000 towards her debts. iii) About £750,000 to provide her with a future income of some £50,000pa net. Husband[18]On 2 June 2025, H proposed a clean break, with him not paying any sums to W. He sought repayment by W to him of £49,000 of legal fees which he had met on her behalf, and £862,364 towards his legal costs.[19]On 6 June 2025, H repeated his previous offer, but withdrew the requirements(i) for W to repay the funding and(ii) for W to pay his costs. In effect, he proposed a drop hands outcome.[20]On 29 October 2025, during the hearing H made a further open offer to purchase a property for up to £500,000 for W to occupy for the rest of her life. The capital value would remain with/revert to him. The offer was said to be open for acceptance until 10am on 31 October 2025. Although not clear from the letter, H’s leading counsel told me that this was an order sought from the court only if I conclude that H was guilty of fraudulent non-disclosure. H’s primary case remains that W’s claims should be dismissed. As far as I am aware, W did not accept the offer.

The parties’ evidence

[21]I heard from W first. She was courteous and pleasant. I sensed her to be a rather vulnerable, forlorn person. In my view, she has been manipulated by Mr TP for his own purposes. Much of her case seems to me to have been driven by him. She was unable to recognise the pernicious involvement of Mr TP. She seems to have been charmed by him and I think has been persuaded by him of H’s wrongdoing, rather than seeing through Mr TP’s apparent friendship. In my judgment, she was reasonably content with the agreement reached in 2001/2002 and had no particular reason to doubt H’s bona fides. But over twenty years on, Mr TP’s research sparked doubt, then a belief that she had been deceived. Her mistrust of H expressed in the witness box is in large part the product of Mr TP’s malign involvement. As a result, W’s evidence was unsatisfactory. She contradicted in oral evidence what she had written. She repeatedly said “That is what I thought” or “That is what I assumed” when shown documentary evidence to the contrary. I do not think she actively lied; rather, she sees everything through her own perceptions which have been fuelled by Mr TP.[22]H was, by contrast, clear and consistent. Expert and probing cross examination, largely directed at trying to establish that H had been guilty of non-disclosure in 2001/2002, did not land any significant blows. Any discrepancies were on minor, immaterial matters, readily explicable by the passage of time. His case is for the most part backed up by the documentary evidence. He was also, I thought, understanding towards W. He told me that he felt sorry for W (despite the litigation and cost to him) and that although he did not consider himself under any legal obligation to pay her monies, had she approached him other than through lawyers, he would have wanted to help her.

The background

[23]H is 62 years old. He was born in Country X. He is the Executive Chairman of Company G, a global manufacturer.[24]W is 56 years old. She was born in Country X. She has lived most of her life in Country Y since the parties separated, but in May 2025 moved to London where she is in rented accommodation. She has a number of health issues; a painful spinal condition, chronic fatigue syndrome, and mental health difficulties.[25]The parties met in 1988 in Country X. They did not live together before marriage. They married in Country X on 14 September 1991; they were respectively 22 and 27 years old at the time. They did not have any children.[26]I am satisfied that H had some pre-marital wealth, having pursued a business career, although there was no evidence about the extent of that wealth. W did not, so far as I can tell, have any notable pre-marital wealth.[27]They separated in August or September 2000 when W was 31 and H 36. This was therefore a nine year marriage. W issued her divorce petition in England on 2 February 2001. Decree Nisi followed on 6 August 2001, and Decree Absolute on 6 February 2002.[28]Their standard of living during the marriage is described by W in her Form E as a “lavish international lifestyle” which I consider to be a considerable exaggeration. Their wealth simply could not afford that sort of lifestyle and they did not have the trappings of it in the form of expensive cars, houses, jewellery or the like. For example, the only house owned by either of them was bought by H in 1990 in Country X for the equivalent of about £63,000 with a 95% mortgage, and after it was sold in 1993/1994 for about the equivalent of about £37,000 they lived in rented accommodation. H has given evidence of his income, which I accept did not, at its highest, exceed about £60,000pa net. They spent their money on holidays, as young, childless people sometimes do. There was a period after H sold a business in 1996 when they travelled the world on a sabbatical and clearly enjoyed themselves, but I regard their standard of living overall as conventional and not out of the ordinary. H described it fairly as “comfortable” but not extravagant.[29]H had started working in the transport industry in 1990. In 1991 an umbrella company, Company A, was incorporated. After sale of his Country X property in 1993/1994 the proceeds were used for living expenses, and not, as W suggests, to be reinvested in the business (I accept H’s case on this). In 1995, W sold her food business which she had started in 1992 and again I accept H’s case(i) that the sale proceeds were minimal and(ii) the monies were used for living expenses and not invested in H’s business.[30]In 1995/1996, H and his brother contemplated setting up the C Trust which was intended to be a tax efficient vehicle for them to own a smallholding belonging to their parents. In fact, it was never settled nor acted upon.[31]In March 1996, H sold Company A. He received the equivalent of about £400,000. I reject W’s unsubstantiated claim in written evidence that he received the equivalent of about £3 million. H’s version is confirmed by an email produced from the then financial controller and is more consistent with the overall history of the marriage.[32]At about that time (1996/1997), H contemplated setting up the A Trust to hold the proceeds of sale from Company A for tax efficiency purposes. In fact, it was not, I am satisfied, proceeded with by H and the monies were, as H has demonstrated in his evidence, transferred to his personal bank account.[33]Between September 1997 and 1999, H invested the equivalent of about £300,000 in a start up telecoms business known as Company B. Those monies came from the proceeds of sale of Company A. H acquired a 60% shareholding. Three other shareholders owned the balance. H started working in the business in 1997.[34]In March 1999, Company B was renamed Company C.[35]From September 1999, Company C was held by Company C Holdings Ltd (“CCHL”). CCHL acquired Company C for the equivalent of about £2m via 100% convertible loan notes. This was a paper transaction. The loan notes were subsequently converted into shares on 5 July 2000.[36]In late 1999, the parties moved to London as Company C was expanding to the UK and H was asked to relocate. They rented a property in Chelsea at £1,000 per week. H’s pay package was an annual salary of about £48,000 gross, a £32,000 subsidy for rent and a car, and a one off relocation payment of about £75,000 gross.[37]As at July 2000, the total allotted shares in Company C, after a consolidation, were 27,360,228 of which H by then held 17,273,162 (about 63.5%).[38]H rearranged his holding structure. He set up, on 21 July 2000, the A Trust. In September 2000 he “sold” his Company C shares to a corporate vehicle, (Company D), incorporated in August 2000, which was owned by the A Trust. I say “sold” because Company D had no funds to pay H for the shares, so that the sale became a debt to H owed by Company D. The hope was that if Company C became a success, H would have a tax efficient vehicle to extract monies.[39]Both H and W were beneficiaries of the A Trust, of which H was the settlor. I accept that W was aware of the setting up of the trust and its existence. The thinking behind including W as a beneficiary was so that the trustees could benefit her directly in the event of H’s death.[40]In August or September 2000, the parties separated. H left the home they were sharing in London and moved into another London property.[41]At about the same time, in September 2000, there was an IPO of Company C. H sold 1,156,156 of his shares for about £490,000. He retained 16,117,006 shares which were worth about £8.5m.[42]There is, in my judgment, no mystery about what H did with the monies he received from the part sale of his shareholding. In part, they were used to fund joint living expenses. In part, they were used to cover about £100,000 of credit card expenditure by W in the year or so after separation. And in part, they were re-invested in the business in August 2001 in what turned out to be an unsuccessful attempt to save the company.[43]According to H, and not seriously disputed by W, Company C collapsed within months of the IPO. This was the year of the dotcom bubble bursting. On H’s watch, Company C had extended too much credit to too many dotcom companies for software products. Many of the dotcom companies defaulted. A profit warning was issued. H describes it as an unmitigated disaster. The shares went into almost immediate freefall. H’s holding (via Company D/the A Trust) reduced in value from about £8.5m in September 2000 to: i) About £463,000 on 31 May 2001. ii) About £335,000 on 29 June 2001. iii) About £252,000 on 19 October 2001 (when H and W’s solicitor met to discuss a financial settlement). iv) About £315,000 on 25 October 2001 when W’s solicitors sent a letter to H confirming that agreement had been reached. v) About £116,387 on 26 May 2002 when the terms of a draft consent order were agreed.[44]H resigned by mutual consent as CEO in November 2000. He “carried the can” for the over extended credit. In a last ditch attempt to shore the company up, H in August 2001 reinvested about £182,000 for which Company D received interest bearing loan notes from Company C with a face value of the equivalent of about £160,000 and the balance in 1,928,520 additional shares.[45]I am sure that for both parties this must have been a difficult and turbulent time. They had separated. The business was collapsing. They were living far from home, in England where their lifestyle was (or was expected to be) paid for by a failed business. Their wealth had gone from about £8.5m (the value of the shares at the time of the IPO) to virtually nil. Their combined efforts over nine years of marriage had little to show for it financially.[46]In November 2000, W instructed solicitors to deal with the divorce and financial remedies. Shortly afterwards she changed firm to Manches, and Mr Richard Sax in particular. As she told me in the witness box, she left everything to him. Mr Sax was a well known, highly regarded expert in the field. H was in person throughout although he briefly instructed a Country X firm to prepare some specific corporate documentation for the purposes of what became the draft consent order.[47]On 25 October 2001, they reached what I am satisfied was a Xydhias agreement under which their assets were to be divided equally. W was to retain all of the loan notes and 3 million shares. H was to retain 15,145,526 shares. Arithmetically, this was at the time approximately a 50/50 split by value, although as time went by the figures favoured W as the shares declined in value and the loan notes retained their value.[48]H was a bit unclear about his movements in 2001, although I am confident that was because of the passage of time rather than any intended deceit. He and his new partner spent some time in May and June 2001 in France. He then went to Country Z and Country X, returned to England and finally left permanently to Country X in about late October 2001. He told me, and I accept, that he decided to move back to Country X to start again both in terms of work and life.[49]W left England in November 2001, living for a while in Country P, then Country Q where she worked as an artist and did some English teaching. She seems to have “got by” but did not accrue any significant wealth.[50]H, when back in Country X in late 2001, identified a possible new business area. He explained that borrowing money for the type of business he had identified was relatively easy because of the asset base against which money would be loaned. Company E was incorporated in Country X in early December 2001 (H applied for its incorporation in late November 2001). His 71.13% shareholding was held by Company D (and thereby the A Trust). These events took place after the Xydhias agreement had been reached but before the draft order had been agreed.[51]In January 2002, again before the draft order was agreed but after agreement had been reached, Company E set up a subsidiary company, Company F, to acquire the assets and business of another, similar named, company. The acquisition took place in April 2002 for the equivalent of £800,000, funded entirely by borrowing, mostly from finance companies. H did not make any investment.[52]On 6 February 2002, W obtained Decree Absolute.[53]A further acquisition by Company E of another company took place in May 2002, again funded by borrowing.[54]On 26 May 2002, the parties agreed a draft order which had been prepared by Manches. By then the further drop in share price meant that W’s 3 million shares and her loan notes were worth about £180,000 (most of which was referable to the loan notes), and H’s 15 million shares were worth about £96,000.[55]I am satisfied (as I will explain later) that the October 2001 agreement and the May 2002 order were essentially implemented, and that neither party received any material benefit. The shares in Company C turned out to be largely worthless. Thus, the parties exited the marriage with negligible assets.[56]Between June and October 2002, Company E made five other acquisitions, and a further four from April to July 2003. In each instance, borrowing accounted for nearly all of the purchase prices. Most of the businesses had revenues of £330,000-£1m. In each instance, the seller remained in the business for at least two years. By this process, companies with high revenues were bought, but Company E was leveraged to the hilt.[57]In September 2002, Company E secured third party investment to reduce the debt. According to H, had this not taken place, the company would have collapsed.[58]H set up in June 2003 a new vehicle, the B Trust, to hold his interest in Company E. The B Trust bought the assets of Company D including H’s 3,080,000 shares in Company E to which an ascribed value equivalent to about £2.15m was placed. The notional value was what H thought was fiscally achievable at the time. The aim was to maximise the figure for a tax saving scheme. No money changed hands. The B Trust thereby owed Company D £2.15m. Company D transferred the benefit of the loan to H, which, when added to the Company C loan, came to about £6.1m. These combined loans created a tax efficient way of enabling H to withdraw, as it turned out, significant future wealth.[59]Company E became successful, such that in 2005 a takeover benefited H as to (i)about £3m in cash and (ii) shares in the new company worth about £2.5m. He stopped working for Company E after the takeover. He took some time out, did a bit of investing and a bit of work, before he joined Company G in 2012. It is from his career with Company G that the bulk of his wealth has been generated.[60]In 2005, H gave W £193,000, sourced from the takeover proceeds. That is worth in today’s money about £363,000. He and W seem to have remained on reasonable terms, talking occasionally over the years. W said that in 2005, H proposed marriage to her which seemed improbable to me, but at the very least they had generally good relations. H, I accept, helped W financially because he “felt bad” that they did not have more to divide at separation. It was a goodwill gift. Thereafter they continued to speak on occasions, but not after 2011.[61]In 2005, W returned to Country X where she bought a modest property with a sizeable mortgage, using part of the monies given to her by H. In 2006 she moved to Country Y where she lived until 2025. She sold her Country X property. She did not buy a property in Country Y; instead she lived in rented accommodation. She worked in the fashion and art world, and set up her business, Company H, which progressed well (if not spectacularly). She moved to England in May 2025 and lives in a rented flat in South West London at £48,100pa, a rather higher rental than the equivalent of £2,300 pm which she paid in Country Y.[62]W in writing says that neither the loan notes nor the shares in Company C were transferred to her as envisaged by the agreement. I will consider this in more detail but I am satisfied that, as H said, they were indeed transferred to her in accordance with the draft order. In 2005, W’s loan notes and shares were converted into 626,632 shares in a new company, Company I after a reverse takeover.[63]In June 2006, W’s shares in Company I were worth the equivalent of about £50,000. W’s financial adviser recommended she sell, but she did not in fact do so for a year by when she received only the equivalent of about £18,000.[64]H himself may have had some shares in Company I but they were worthless and he did not bother checking on them (W’s shares had some value because of the converted loan notes).[65]W told me that said she did not follow H’s career, which indicates that she had no particular grievance about the financial agreement, nor any reason to think that she should benefit from any success he might enjoy. She says that in 2007 or 2008 she was sent an article about his success by a friend but did not act on it. She told me that she did not do anything because she did not think she could retrieve Manches’ files which seemed a thin explanation.

These proceedings

[66]W told me that the reason she applied for financial relief was because of Mr TP’s encouragement. She did not know that an order had not been made. With Mr TP’s prompting, she approached lawyers in 2023 and it was discovered that there was no court order on file.[67]On 15 June 2023, W’s then solicitors, Dawson Cornwell, wrote to H, entirely unexpectedly, saying that they were instructed by W and seeking: i) £10 million for W’s interim needs and legal fees. ii) An undertaking from H that he would not make any transfers out of the jurisdiction, other than in the normal terms of business, without W’s written consent. iii) Confirmation from H that he would not make any payments or transfers of £10,000 or more, except in the normal terms of business, again without W’s consent. iv) A schedule of H’s financial disclosure within 14 days.[68]This seems to me to have been a thoroughly inappropriate and hostile first communication which set a most unfortunate tone for the proceedings. On what basis could W reasonably demand £10 million for interim provision? Why was the request for a non disposal undertaking justifiable? In the end, over a year later, at trial W seeks £2.63m (barely 25% of what was originally described as an interim demand) and her demands for H to give a non disposal undertaking and provide financial disclosure have come to nought.[69]H described himself as reeling from the shock of receiving this letter, which did not seem to me to be an exaggeration, and was a natural and understandable reaction.[70]Shortly after that letter had been sent by email, the solicitor with conduct of the case at Dawson Cornwell sent a Reply All by accident, which copied in both H and Mr TP. Thus, H became aware of Mr TP’s involvement in W’s case. On 24 July 2023, Dawson Cornwell said in a letter to H’s newly instructed solicitors that Mr TP was a “disclosure consultant” for W, which was a curious description; W’s attempt to distance herself from this letter in her oral evidence was not persuasive.[71]H believes, and I agree, that Mr TP befriended and manipulated W to attempt to gain financial information about him and, in particular, about Company G, through the disclosure process in these proceedings. Prior to these proceedings, H says (and the evidence appears to confirm) that Mr TP(i) between July and November 2022 posted abusive online tweets under aliases about H and other directors of Company G and(ii) in about August 2022 made statements about H and Company G to the solicitors for Company G’s main investor, in particular alleging money laundering. In the event, no immediate damage was done, but Company G’s lawyers have written formally to Mr TP alleging malicious falsehood and warning him of potential legal proceedings.[72]H believes with (it seems to me) some justification that Mr TP, having failed in his attempt to destabilise the company through his actions in 2022, somehow discovered W, approached her, and decided to try and obtain financial information about H and Company G through her. The initial contact was made on 21 October 2022 by a man, describing himself as a Private Investigator, who said he was investigating “financial crimes” including money laundering by H; this may in fact have been Mr TP and, if not, it was someone instructed by Mr TP. I am confident that Mr TP encouraged W to litigate financial remedy proceedings against H, and provided her with funding to do so. For some time he was clearly active behind the scenes. Whether he is now is not apparent; his involvement seems to have ended in early 2025, but I cannot be sure of that. It may be that once I accepted the millionaire’s defence, Mr TP came to realise that obtaining financial disclosure about H through this litigation would be difficult, and decided that little could be achieved through this route.[73]Why has Mr TP sought to become involved with H and Company G in this way? He is known as a professional short trader in the financial markets, and it seems plausible that he has been attempting to destabilise the company in order to manipulate the share price for his own investing positions.[74]Mr TP has provided W with legal funding as follows: i) £96,000 which W says he has written off. ii) Further sums totalling £160,000 which W says are owed by her to Mr TP.[75]In addition, W has received about £137,000 for legal fees from Mr K, to whom W says she was introduced by Mr TP. W says the monies are a debt which she owes to Mr K. Whether Mr K is an alias of Mr TP or an associate is not clear.[76]Mr K drew up a draft facility agreement for legal fees funding (which was never in fact signed) which he sent to W on 30 June 2024. The draft agreement requires W to provide Mr K with “a copy of all documents obtained from, or provided to, any Defendant within the proceedings”. “Defendant” in this context, means H. Thus, Mr K/Mr TP were seeking H’s disclosure within the financial remedy proceedings to be passed on to them privately by W, seemingly without informing H or the court. Further, the draft provided for a success fee which is unlawful.[77]The communications between Mr TP/his associates and W/her previous lawyers were extensive. An agreed schedule particularises about 400 such communications in the period from October 2022 to February 2025. I accept that because they are subject to privilege, I cannot know what part Mr TP played on each occasion, but the fact that he was at the very least copied in is telling. W said to me in her oral evidence that “we [i.e herself and Mr TP] fired Dawson Cornwell” which indicates his close involvement. Mr TP, in an email dated 15 June 2023, said “I am assisting [W] in managing the proceedings”. It is clear that Mr TP, for a lengthy period, took an active role in directing the litigation.[78]W in the witness box saw nothing unusual in all of this. She was seemingly not suspicious of Mr TP who she still regards as a friend. Even the contents of the letter from Company G’s lawyers to Mr TP did not trouble her. She lacked any awareness of her own susceptibility to manipulation, and the obvious self interest of Mr TP. When she was asked in evidence why she did not end the business relationship, she could not answer.[79]It is a moot point whether any of this would have been discovered had Dawson Cornwell not copied in Mr TP as well as H by the Reply All.

Legal fees funding orders

[80]Pursuant to a consent order dated 17 December 2024, H agreed to pay £49,000 towards W’s costs. On 3 July 2025, I ordered H to pay a further £290,014 by way of a Legal Services Payment Order. He has, therefore, funded W to the tune of £339,014 in total.

The agreement

[81]It is not necessary for me to rehearse in detail the correspondence between Manches and H from January 2001 to May 2002. I was taken through the run of communications at length during the hearing. I shall pick out what seem to me to be the most significant.[82]My starting point is that H and W spoke many times on the telephone during this period; I accept H’s evidence rather than W’s on this point. Further, it is of relevance that W gathered as many financial documents (running into several hundreds of pages) belonging to H as she could in the FMH which she thought might be of use, and handed them to Manches.[83]Manches first wrote to H on 24 January 2001. Thereafter, there were numerous exchanges by letter/email. W, it is obvious, was keen to progress matters. H was somewhat slow in replying, but not, in my judgment, obstructively slow. H and Mr Sax spoke over the telephone. They also met in person on 9 May 2001, and again on 19 October 2001. W did not attend these meetings.[84]On 20 July 2001, H offered in writing an equal split of all assets which seems to have been what he had proposed at the meeting on 9 May 2001. He envisaged that the Company C shares be split in specie.[85]The purpose of the meeting on 19 October 2001 was to attempt to reach agreement and structure an equal split. Mr Sax told H that W would prefer to have all the loan notes which had been granted to H as a result of H’s August 2001 investment; loan notes would give her a 10% income which shares would not.[86]After the meeting between H and Mr Sax on 19 October 2001, Mr Sax wrote to H on 25 October 2001. Despite W’s denial in oral evidence that she instructed Mr Sax to make this offer, her written witness evidence specifically says “I instructed Richard to make an offer on my behalf”. Mr Sax, in the letter, says:
“I refer to our meeting on the 19th October. I have now had an opportunity to meet with [W] in order to discuss with her the asset and income position as disclosed by you and the proposed agreement which we discussed. I am pleased to say that the following can be agreed….”
[87]The letter went on to set out the agreed terms which in summary were: i) H to transfer to W the loan notes. ii) H to transfer to W 3 million shares in Company C. iii) The shares to be subject to put and call options for the next 24 months. iv) H to pay W £5,000 per month for two months (£10,000 in total). v) H to pay Manches’ outstanding costs. vi) W would prepare a list of furniture she wanted to keep. vii) Clean break. viii) H to provide certain documents: a) Precedents for the put and call options. b) Necessary information relating to the loan notes. c) Forms of transfer for the loan notes. d) Bank statements showing the present balance in an identified bank account.[88]The figures which formed the basis of the agreement had been discussed at the meeting on 19 October 2001. Broadly: i) W would have 3m shares with a value (on 19 October 2001) of £41,000 and the loan notes with a value of about £160,000, so about £201,000 ii) H would have about 15m shares with a value of about £210,000. These figures (looked at now) are not absolutely equal, but the parties seem to have thought they were and it may be that at the time different exchange rates were used.[89]On 16 November 2001, H sent through draft put and call options. Manches replied that the furniture had been resolved, but said there were problems with the drafting of the put and call options. Despite that issue, on 31 December 2001 Mr Sax continued to refer to “the agreement which we reached” on 25 October 2001. Neither party thought that agreement had not been reached.[90]On 17 December 2001, Manches sent H a draft order.[91]On 18 January 2002, Mr Sax confirmed that the put and call options were agreed.[92]On 26 May 2002, the draft order was belatedly agreed by H. The terms of the agreement had not materially changed since October 2001. Over time, the value of the shares had changed, so that on 26 May 2002: i) W’s 3m shares were worth £19,000 plus loan notes valued at £160,000, so about £179,000. ii) H’s 15m shares were worth about £96,000.[93]In my judgment the documentation clearly shows that the parties reached an agreement in Xydhias form on 25 October 2001. Xydhias v Xydhias [1999] 1 FLR 683 had been published at the end of 1998 and would undoubtedly have been well known to Mr Sax. The essential terms were as set out in the letter, and achieved a clean break. The issue about the drafting of the put and call options was one which a court could readily have disposed of at a short hearing, without affecting the substantive agreement. If W thought that H was reneging from the terms, she could have applied to make the October agreement into a court order and/or to resolve any issue about the options. In fact, she later agreed in January 2002 to what H proposed. This seems to me to have been classic Xydhias territory.[94]In any event, I doubt that much turns on the precise date of the agreement. Counsel for both parties accepted that the duty of disclosure extended not just to the date of the Xydhias agreement, but to the date of the draft order being agreed on 26 May 2002; Livesey v Jenkins [1985] FLR 813 at page 823D.[95]Further, I can see nothing to suggest that, on the face of it (and subject to W’s arguments about non disclosure, non implementation and undue pressure), the agreement was in any way unprincipled or inappropriate. These were still young people who did not have any children, and who had agreed to divide their assets equally. The good sense of the agreement was consistent with White v White [2000] 2 FLR 981 which had been published in October 2000, about a year before agreement was reached.[96]I was taken through the disclosure of documents sought from H by W in the period from January 2001 to May 2002. W’s leading counsel accepted that there was no “smoking gun”. It is clear that W sought certain disclosure by way of confirmation/clarification. It is also clear to me that H was slower than he should have been in replying, but I am satisfied that he did answer the queries to W’s satisfaction. The run of correspondence from Mr Sax does not suggest that disclosure was a major block. In the end, agreement was reached, a draft order approved by both parties, and W’s solicitors ceased asking for more disclosure.[97]It remains a mystery as to why the draft order was not then sent to the court. It is agreed that, based on what is contained in the Manches file, on 17 May 2002 W sent an email to Manches. W has claimed privilege to that document, as well as to numerous other documents on the file. That seems to have been the end of all communications between W and Manches, or between Manches and H. When H replied on 26 May 2002 to Manches, confirming his agreement to the draft order, there was no response from Manches. So, says H, the likelihood is that W disinstructed Manches, as a result of which the agreed order was not lodged.[98]I do not accept that proposition. I have no evidence to that effect and cannot, in all conscience, draw such an inference. Mr Sax of Manches was not asked to give evidence, nor, I was told, has he even been approached. There is simply no evidence as to why it was not lodged, which would justify the sort of inference referred to in Wisniewski v Central Manchester Health Authority [1998] EWCA Civ 596 at page 22. Perhaps it was an oversight. Perhaps it was sent but not received. Perhaps it slipped everyone’s minds. Whatever the reason, it is common ground that it was not made into an approved court order.[99]What is clear, in my judgment, is that both parties thought an order had been made by the court, and acted accordingly. It was not until over twenty years later that W discovered, as a result of inquiries by her then legal team, that the order had not been made.

Undue pressure

[100]W does not argue that the agreement is wholly vitiated by alleged undue pressure which she says she was under. She asserts, however, that it is a relevant factor which reduces the weight to be attached to the agreement. Undue pressure is referred to in Edgar v Edgar [1981] 2 FLR 19 at page 25:
“To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties.” both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the inadequate knowledge, possibly bad legal advice, an important change of are all relevant to the question of justice between the parties.”

inadequate knowledge, possibly bad legal advice, an important change of

[101]W’s case is that: as a result of the breakdown of the marriage she had financial and housing insecurity; the negotiations proceeded slowly because of H; H was difficult towards her; she was unwell; H stopped her use of a credit card; he did not fully disclose; and she felt under such pressure that she had to agree.[102]I do not accept this. True, she had to leave the marital home, because of the financial implosion taking place, but she was able to move to a nearby rented property in South West London at £750pw rather than £1,000pw which H (or Company C) paid for. There is no contemporaneous evidence of her state of health, and at no point in the correspondence between Mr Sax and H was it mentioned as a factor. She was able to conduct the negotiations through Mr Sax, whose legal fees H paid for. She incurred £100,000 of expenditure on the credit card in the year after separation (which H flagged up in correspondence with Mr Sax), so it is perhaps unsurprising that H took steps to restrain expenditure. She and H were physically separated, living in separate accommodation, and for some of the time thousands of miles apart. There is almost nothing in the correspondence from that period complaining about H’s behaviour apart from a reference to the credit card and to H’s generally slow responses. H offered more or less from the outset an equal division of all assets and did not renege on that proposal. The agreement itself was reached in October 2001 after a meeting between W’s solicitor and H. W had plenty of time to say she had changed her mind but did not do so, and correspondence continued perfectly amicably right up to May 2022. Nor did W complain to H after May 2002, and it seems that she and H continued to be on reasonable terms. As for alleged non-disclosure, I find (as explained below) that H on the whole provided a transparent presentation of his finances. I do not doubt that this was a difficult period for both of them, but I am unpersuaded that W, because, of undue pressure, “had no choice but to do this deal”. I judge this to be an exaggeration and distortion, probably as a result of Mr TP’s influence. The meaning of the agreement was understood and freely entered into by both parties who wanted to achieve a settlement, in circumstances where their hopes for significant wealth from Company C had largely melted away.

Alleged non disclosure

[103]Where one party asserts that an agreement is vitiated by non disclosure: i) The approach to non-disclosure is the same whether the agreement is a pre-nuptial agreement, post-nuptial agreement, Xydhias agreement, or Edgar agreement: para 94 of Helliwell v Entwistle [2025] EWCA Civ 1055. ii) Non disclosure can be either fraudulent or inadvertent. iii) Per Mostyn J in Cathcart v Owens [2021] EWFC 86 at para 30: “Fraud is classically defined as wrongful deception intended to result in financial or personal gain. In the field of ancillary relief the traditional grounds for seeking the set-aside of a final order are conventionally stated to include both fraud and non-disclosure: see for example FPR PD 9A para 13.5. Deliberate non-disclosure is, of course, a species or subset of fraud for both in law and morality suppressio veri, suggestio falsi. The reason for separately identifying fraud and non-disclosure as grounds for a set-aside is that there are some rare cases whether the material non-disclosures is inadvertent and therefore not fraudulent. iv) The question for me in this case, adapting Mostyn J’s words at paragraph 46 of Cathcart (supra), is: “Did [H] in the period leading up to the making of the [draft] order, practise a deception on [W] with the intention of gaining a personal or financial advantage for himself?”. v) If non-disclosure is found to be intentionally fraudulent then it is assumed to be material and the burden of showing otherwise lies with the representor (in this case H). Where non-disclosure is found to be inadvertent, it is for the representee (in this case W) to prove materiality. These principles can be collected from Sharland v Sharland [2015] UKSC 60, Gohil v Gohil [2015] UKSC 61, and Helliwell v Entwistle (supra). vi) In my judgment, whether non-disclosure is fraudulent or inadvertent, materiality means whether a court would likely have made the same, or a materially different order. It is not enough for the applicant to say that he/she would have considered matters afresh and might have approached the case differently. That is likely to be a necessary ingredient (if the applicant would have done nothing different, then the agreement/order would likely not have changed), but is not sufficient by itself for in the end it is the court which makes the order. Accordingly, the later court must do its best to determine whether an earlier court would have made a different order in the light of the impact of the non-disclosure. The authorities repeatedly refer to the need to show the effect of non-disclosure upon an order i.e whether a different order would have been made: paragraph 33 of Cathcart (supra), paragraph 33 of Sharland (supra), page 830E of Livesey|supra) and para 44 of Gohil (supra).[104]In considering this aspect of the case, I make some preliminary comments: i) Overall, I found H to be truthful, credible and a more reliable witness than W. He did not attempt to obfuscate or deceive W at the time of the agreement. He gave disclosure as requested by Manches and was generally open and transparent. He was not (to answer the question posed above) trying to practise a deception on W with the intention of gaining a personal or financial advantage for himself. ii) Although the focus was on documentary evidence, I accept that W and H discussed matters during the relevant period and H kept nothing from her. In particular, H mentioned Company E to her, although I acknowledge that he did not expressly refer to it in correspondence. iii) W told me that when H returned to Country X after their separation, she expected him to do business deals because that is how he operated. It would not have been a surprise to her to hear that H was starting a new business opportunity. iv) Manches at no point alleged non disclosure of assets by H during their exchanges, although they rightly complained about his tardiness in responding. H was asked for documents and over time he produced them to the satisfaction of Mr Sax. Other than one reference to slow disclosure of bank statements being “suspicious”, there is nothing in the correspondence to suggest that W, or Mr Sax, were accusing H of concealing assets. Agreement was reached without any real difficulty. The run of correspondence is unremarkable. v) W had good knowledge of the financial affairs, which were straightforward, and supplied to Mr Sax a large number of documents which she obtained in the FMH for him to peruse. vi) After conclusion of the agreement in October 2001, W did not at any time say to H that she had been dissatisfied with his disclosure, or that the agreement had been tainted by obfuscation/concealment on his part. The first H was aware of this suggestion was after Dawson Cornwell contacted him in June 2023. The C Trust[105]I have referred to this above. Although W advances it in her sworn evidence as a limb of non-disclosure I am satisfied that the trust (which was for purposes to do with H’s parents) never came to fruition, and it cannot realistically be said to constitute material non disclosure. It was not pursued during the trial. The A Trust in 1996[106]Again, as set out above, this was a plan alighted upon by H which never came to pass. W was aware of it. It adds nothing to W’s case, and, although advanced by W in her written evidence, was not pursued at trial. A Trust 2000[107]In 2000, H set up the A Trust, and incorporated Company D (as explained above), to hold his shares in Company C. W was aware of the trust and Company D. H says that he discussed this with Mr Sax, which I accept. In a letter dated 15 May 2001 Mr Sax asked about the funds held by Company D, and H produced the balance. W produced documents in these proceedings about the trust and Company D, which she had located in the FMH after separation. Moreover, its only asset of value was the Company C shares, and any funds flowing therefore, about which W was well aware. The precise structure was rather less important than knowledge of the bank balance and the number of shares, of which W was made aware. There was, I find, no non-disclosure. Company E[108]W asserts that H did not disclose his interest in Company E.[109]The essence of W’s assertion is that: i) He set up Company E in November/December 2001, while communications between H and Manches were ongoing. A former business associate, Mr L, and a friend, Mr M, became directors before May 2002. H borrowed about £59,000 from Mr M to invest in the business. Mr M acquired shares in March 2002. Company E purchased at least one (possibly two) businesses before H agreed to the draft order on 26 May 2002. ii) By May 2002 (when the draft order was agreed), Company E had potential value. iii) Had W known of Company E, she would have sought shares in it, and would in due course have benefited from its success.[110]As I have already indicated, I am satisfied that H told W about Company E in this period. He was open about it and had nothing to hide, and no reason to hide anything. True, he did not refer to it in correspondence but he clearly thought there was no need to because: i) Agreement had been reached to divide the assets at separation, which would not have included Company E, a business set up after over a year after separation and a short while after agreement was reached in October 2001. ii) Company E was valueless. It was a shell company with no trading history or track record. Any business purchases by Company E had been carried out with 100% borrowing. H himself invested nothing. It was not until the external investment in September 2002 that Company E started on a path to success.[111]Further, I note that H’s email dated 26 May 2002 to Manches was sent from his new Company E email address which is indicative of no intention to conceal.[112]W said in her Form E that H “diverted” Company C monies to invest in Company E. This is false, and W, not for the first time in her evidence, was forced to say that she “assumed” something rather than being able to evidence it.[113]W points to Company E’s accounts for the three months to June 2002 and in particular a balance sheet of the equivalent of about £1 million. H explained this in his written and oral evidence. The figure appears in the column headed “Group”. If one looks across to the column for the parent company, the equivalent figure is about £64,000. Most of the equity in the group (c£789,000) was loans represented by redeemable preference shares issued to the vendors, which carried an obligation to repay the loans. This is clearly explained in the notes to the accounts. I am satisfied that the more accurate figure was, as H said, £64,000 of which H’s 71.13% share was about £45,000. As he owed Mr M about £59,000 (borrowed as start up capital) the value of his interest was nil. The inflated balance sheet was a legitimate accountancy construct, perhaps intended to make Company E more appealing to an external investor.[114]In September 2002 (four months after the draft consent order was agreed), a commercial investor agreed to take equity in Company E to reduce the debt. It paid the equivalent of about £1m for 2,886,667 shares which would have valued H’s shares at about £1m. So the suggestion is that H’s shares had considerable value by then. As H says, however, the investor acquired Class A preference shares which had several protections and the value was higher than ordinary shares; they saw potential, but that was not the real worth of the company. This does not strike me as an unusual arrangement.[115]Pulling this all together, I conclude that as H told W about Company E, he was not guilty of non-disclosure. She did not pursue details, probably because it was post separation endeavour, it had no obvious value and they had agreed to split assets at separation.[116]If I am wrong about that, and H’s failure to mention Company E expressly in correspondence with Manches constituted non-disclosure, I am wholly satisfied that such non-disclosure was innocent and not intended to induce W to enter into an unfavourable agreement so as to procure personal gain for himself. He thought it was irrelevant; he did not deliberately conceal anything; he and W discussed his new business; the fact that he was dilatory in his communications with Mr Sax points towards innocence, for if he had something to hide he would surely have sought rapid closure; the agreement to divide assets at separation was appropriate; he had invested nothing into it; Company E was valueless and had no prospects until the third party investment in September 2002; at May 2002 it was a highly risky, 100% leveraged proposition with no liquidity, founded less than six months earlier; this was all post separation effort on H’s part which the parties had agreed would not be shared.[117]On that scenario (inadvertent non-disclosure), per Gohil (supra) and Sharland (supra), it is for W to demonstrate that had H given disclosure it would have made a material difference. I am confident it would not have done. She knew about the existence of Company E but showed no interest in it, and may not even have mentioned it to her solicitors. She and H had separated long before, and agreed an equal split of assets in existence at the end of the marriage. W would have expected H to embark on a fresh business venture. Had she made enquiries, she would have ascertained that Company E had no value and was a risky, fully leveraged, venture. At best, any theoretical value was highly illiquid. It was a post separation business into which no marital monies were invested. An equal split of assets at separation was obviously fair. They were still young, and had no children. In my judgment, W would have been unlikely to change her negotiating stance and it is unlikely that a court would have made a materially higher award in her favour. It is clear from the correspondence that W wanted to bring matters to a close. She told me that would not have sought periodical payments. It is hard to see what she could have claimed. She said she might have sought shares in Company E but it seems improbable to me that a court would have made such an order in respect of a valueless company which was the product of entirely post separation effort by H.

Implementation of the agreed draft order

[118]W makes a number of assertions to the effect that the draft order was not implemented, all of which are rejected by H. I agree with H’s presentation on this issue.[119]Pursuant to the agreement, H was required to transfer the loan notes to W, which she had requested as they were interest bearing. W in her written evidence says they were not transferred. For the first time, in oral evidence, she told me she thought they were transferred to her in 2005. H says that he signed the relevant document which he sent to Company C in November 2001, acting on what had been agreed in October 2001. On 25 October 2001, Manches requested from H the signed loan notes and share transfer, but thereafter they did not repeat the request because, it seems to me, H had done as he had agreed. It is of note that W did in fact receive interest on the loan notes from Company C (H referred to this in the email to Mr Sax dated 26 May 2002, to which there was no demur). W accepts in her Form E that she received income for a period. If interest stopped at some point thereafter, that is probably because the business was in financial difficulties and went into administration. I reject W’s case that the loan notes were not transferred to her.[120]H was also required to transfer 3 million shares in Company C to W. W in written evidence says this was not done but orally she told me it took place in 2005. H says, and I accept, that he signed the stock transfer form and gave it to W, at which point it was up to her to sign and lodge with the register. According to him, he and W agreed that, because a transfer of such a significant number of shares would spark a further loss of confidence in the company, she would not file the signed form until she wanted to sell them. In the end, however, it would be up to her when to sign and file, and she could sell at any time. This, I find, is what was agreed, and H did sign and give the form to W in about November 2001. Manches did not chase the relevant document from H after 25 October 2001. Further, an email from a former Company C officer to Mr TP on 27 October 2023 said that W contacted him once and “She told me that [H] gave her all his shares as his divorce settlement…”. I reject W’s case that the shares were not transferred to her.

Matrimonialisation

[121]In her written evidence, W seemed to assert that because H’s shares in Company E were held by Company D (and thereby in the A Trust of which W was a beneficiary), they in some way acquired a matrimonial character. This was not strongly pursued by her counsel, although there was a suggestion that it might inform a needs claim. These, I remind myself, were shares referable to a company set up by H a year or more after separation and which did not create any value for some time thereafter. As H said, Company D/the A Trust was simply a convenient, tax efficient wrapper. Further, it was on any view post separation endeavour. In my judgment the precise structure and title is of little relevance on the facts of this case. What is far more relevant is how the Company E shares were treated; Standish v Standish [2025] UKSC 26, and in my judgment there is no plausible argument to suggest that the Company E shares in some way became matrimonialised. Indeed, there is an illogicality in this since W is expressly not advancing a sharing claim.

Conclusions

[122]My task is to come to an overall fair outcome with reference to the s25 criteria. All that follows is within that overarching principle.[123]This application was made 23 years after separation, and 22 years after the parties had reached agreement. I have concluded that the agreement is not vitiated by non-disclosure, or reduced in relevance by undue pressure.[124]Wyatt v Vince [2015] UKSC 4 confirms that there is no limitation period to an application for financial remedies. Because no final order was made by the court in this case, W is entitled to make an application.[125]However, at the risk of stating the obvious, a delay of over 20 years is a highly relevant factor within the overarching analysis of fairness. As Lord Wilson said at paragraph 32 of Wyatt (supra):
“Yet there is a prominent strain of public policy hostile to forensic delay. The court will look critically at explanations for it; and, even irrespective of its effect upon the respondent, will be likely, by reason of it and subject to the potency of other factors, to reduce or even to eliminate its provision for the applicant.”
[126]The effect on the respondent (in this case H) is relevant when considering the impact of delay. As Wood J said in Chambers v Chambers [1980] 1 FLR 10: “The longer the lapse of time the more secure should he or she feel in the re-arrangement of financial affairs”.[127]Further, in this case, unlike in Wyatt, an agreement had been reached. To quote another passage from page 25 of Edgar (supra):
“Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement.”
[128]In this case, H can point to both the long delay AND the clear agreement freely entered into and implemented by the parties.[129]Moreover, there is clear authority to the effect that needs should ordinarily be met by the payer only if there is a clear causal link between those needs and the relationship. The mere fact that the payer has great wealth is insufficient to justify a needs award. At paragraph 33 of Wyatt, Lord Wilson said:
“Confronted by the difficulties identified at (a) to (f) in paras 30 and 31 above, what might the wife assert so as to carry her application forward to possible success? It is, standing alone, insufficient that the husband is now so wealthy that (as has readily been agreed) he can meet whatever award, if any, might reasonably be made in her favour and there is no need for any exploration of his financial circumstances. But the wife asserts needs, both for a better home for herself and her family and, in the light of the severe limitations on her earning capacity, for a fund out of which to maintain herself for the rest of her life. These, with questionable forensic wisdom, she quantifies at £0.55m for the home and £1.35m for the fund, and thus at a total of £1.9m. Even at this stage one can say that, in the light of the negatives, an award approaching that size is out of the question. It is a dangerous fallacy, albeit currently propounded by those who favour reform along the lines of the Divorce (Financial Provision) Bill currently before the House of Lords, that the current law always requires rich men to meet the reasonable needs of their ex-wives. As Thorpe LJ said in North v North [2007] EWCA Civ 760, [2008] 1 FLR 158, at para 32, “… it does not follow that the respondent is inevitably responsible financially for any established needs… [h]e is not an insurer against all hazards…”
In order to sustain a case of need, at any rate if made after many years of separation, a wife must show not only that the need exists but that it has been generated by her relationship with her husband: see Miller v Miller, McFarlane v McFarlane [2006] UKHL 24, [2006] 2 AC 618, para 138 (Lady Hale)”.[130]W’s case, once I have rejected her attempts to impugn the agreement, seems to me to come to this. She was not aware until 2022 that the order had not been made. The effect of their agreement was to leave H and W with negligible assets, whereas a matter of a few months before H was worth many millions through his Company C shareholding. Within a few months of reaching agreement, H had embarked on a new business and career which brought him considerable wealth. W has never been able to build up wealth. She has an income but no housing or long term financial security. H is well able to meet what would be, by his standards, a very modest award.[131]It seems to me that, despite all that has been said and done on her behalf by her lawyers, W’s case has limited merit. There are a number of powerful factors which militate against any award in her favour.[132]The parties freely entered into an agreement. They fully understood its implications. They implemented it. It was a fair agreement, dividing the assets broadly. They did not have children and each was free of family burdens to pursue other pathways in life. The agreement was appropriate and fair, and likely to have been the sort of order made by any court. I am not persuaded that there is any good reason not to hold the parties to their agreement.[133]That is all the more so because over twenty years have passed since the agreement. True, W was not aware that an order had not been made, but since they had reached a full and final agreement, that seems to me to be of limited relevance. Both parties thought it had been made, they implemented it, and from then on they both assumed the divorce and financial remedy matters had been fully and formally finalised. They clearly intended a court order to be made, and neither had any inkling that an application could or would be made far into the future. W was aware in general terms during this period that H was enjoying a successful career, but she took no steps to inquire into her potential claims. It is inherently unfair on H to be subject to a claim twenty years after a full and final settlement was entered into, which both parties intended and believed was binding. He and W set about their separate lives on that critical assumption. Had a court order been made, W would have no claims. H was entitled to think that he was free of any further financial claims. Why should the outcome be different just because the draft order was, for some unknown reason, not lodged and made a court order?[134]Unlike in Wyatt (supra), where the Supreme Court indicated at paragraph 34 that the wife potentially could build a case based on her care of the children after separation, in this case there was no ongoing contribution to the relationship by either party after separation.[135]H cannot be held responsible for the choices made thereafter by W. She has not made great wealth, but she has been able to develop a still active career and a respectable income. H had no say or involvement in her life choices. He should not be the insurer of last resort against those choices.[136]There is no doubt in the jurisprudence that a lengthy delay can “reduce or even eliminate” the potential award; para 32 of Wyatt(supra). An example of the combination of an agreement and lengthy delay eliminating the applicant’s entitlement to an award can be found in A v B (Financial Remedies) (No 2) [2018] EWFC 35, a decision of Baker J (as he then was). And in that case, the agreement was informally reached between the parties whereas here a formal agreement was arrived at and incorporated in a draft order.[137]In 2005, H gave W about £193,000, now worth £363,000. That was a gift borne of generosity (and perhaps a touch of guilt that their marriage ended with no money to divide). W bought a house in Country X but then sold it. It is unreasonable to expect H to provide funds to her to buy an expensive property in London when she has in the past had the means (thanks to him) to buy a property which she then chose to sell and has lived in rented accommodation ever since.[138]All the wealth accrued by H is post separation. There is no suggestion that any part of it has any direct link to the parties’ relationship.[139]This application has cost H nearly £1.4m in his own legal fees. He has paid W for her legal fees £339,014. He does not seek either(i) an order for costs or(ii) an order for repayment of monies paid to W for her legal fees, no doubt because W has no means to comply with such orders. But the plain fact is that this litigation has cost him nearly £1.75m.[140]The litigation, and attendant costs, has been in significant part the result of Mr TP’s malign interference by way of a collateral attack against H. Although I consider that Mr TP is unlikely to seek repayment of his debt from W, that is on the working assumption that she receives no award from H. If, however, H is ordered to pay W a lump sum, then it is possible that it would find its way to Mr TP, which I consider would be unreasonable.[141]My duty to consider all the s25 criteria includes, of course, an obligation to consider W’s needs. I have concluded that she has an earning capacity approaching £100,000pa net. She has lived in rented accommodation for almost all her adult life, including since separation. In my judgment, that income is sufficient to provide for rental accommodation and general needs going forward.[142]I will not make any order for H to pay any capital or income to W. If she has outstanding legal fees, that is a matter between her and her lawyers and H has already paid a very large sum to enable W, with Mr TP’s prompting, to bring this litigation against him. Most of that was pursuant to a LSPO made by me and intended to take W’s legal fees though to the end of the proceedings. I do not see why H should pay for a costs overrun, said to be about £37,000. W has some credit card indebtedness; I anticipate she should be able to reschedule payments.[143]I acknowledge that W currently has no provision for her retirement, but it is not on the face of it fair to expect H to fund her future in this way. She has sufficient income which, if applied judiciously, permits some monies to be set aside for future provision.[144]Further, per paragraph 33 of Wyatt (supra), there is no obvious causal link between W’s needs now and the relationship which ended in 2000. W’s needs are a result of her own choices, over which H had no say after 2000. Why should he be responsible for meeting present and future needs which are not generated by their relationship? The fact that H is vastly wealthier than W does not of itself justify an award in her favour.[145]I am satisfied that, on the unusual facts of this case, for the reasons set out herein, and having full regard to s25 of the Matrimonial Causes Act 1973 applied holistically to all the evidence and submissions, there should be no order in favour of either party. All claims shall be dismissed, and there shall be an immediate clean break.