Wei-Lyn Loh v Ardal Loh-Gronager [2025] EWFC 483

[2025] EWFC 483Case No 1690-3090-4913-6367
IN THE FAMILY COURT
Venue SITTING AT THE ROYAL COURTS OF JUSTICE, Royal Courts of Justice, Strand, London, WC2A 2LLDate 20 October 2025
Before
The Honourable Mr Justice Cusworth
Between
Wei-Lyn LohApplicantArdal Loh-GronagerRespondent
Patrick Chamberlayne KC and Richard Sear KC (instructed by Payne Hicks Beach) for ApplicantMichael Glaser KC and Ewan Murray (instructed by Stewarts) for RespondentHearing Hearing dates: 6-14 October 2025
JUDGMENT

Cusworth J:

[1]This judgment follows the conclusion of a final financial remedy hearing, during which I heard evidence from the parties and other witnesses over 5 days, and then a day of submissions. This is the third substantive judgment which I have given in these proceedings, the first being reported as Loh v Ardal Loh-Gronager [2024] EWFC 241 (‘the chattels judgment’) and the second as Y v Z [2025] EWFC 221 (‘the conduct judgment’). The first followed a preliminary issue hearing about the impact of the terms of the parties’ Pre-nuptial Agreement (‘PNA’), on the ownership of valuable chattels acquired during their marriage. The second judgment, anonymised to await the factual findings of this judgment, dealt with whether the wife would be allowed to argue that the husband’s final entitlement under the PNA should be impacted by his conduct, within the context of s.25(2)(g) of the Matrimonial Causes Act 1973 (‘MCA 1973’). What follows should now conclude these proceedings between them.[2]However, despite the parties’ agreement that the most which the husband might recover substantively under the terms of the PNA will be less than £6.5m; and despite the overarching issue before me being the extent to which that receipt should be reduced in all the circumstances, after considering the ways in which each party had behaved during the marriage and in these proceedings; nevertheless, before proceeding it is sadly necessary to identify that their combined costs bill at trial amounted to some £4,785,638 for the entirety of the application and assorted side issues (£1,871,987 for the husband, and £2,923,651 for the wife) in addition to further costs incurred by each party in respect of side applications. That this vastly disproportionate sum has been expended plainly evidences that something has gone very wrong with the process of resolving this application, and what that has been will merit careful consideration when the time comes to consider where those costs will fall. At trial, each party has sought an indemnity costs order against the other. This is therefore high stakes litigation in the extreme.[3]Background. The Wife is Wei-Lyn Loh, aged 42, born on 28 November 1982. Her Form E disclosure as at September 2023 showed that she was enormously wealthy with most of her wealth in business assets and the remainder liquid or in property. The Wife is also the beneficiary of a family trust. However, given the narrow issues which have been before me, and the existence of the PNA, there has been no need to update her financial position for this hearing with any greater precision. The expense of financial disclosure has not caused the explosion of costs in this case.[4]The Husband is Ardal Loh-Gronager, aged 35, who was born on 6 August 1990. He was previously a banker, having worked for Goldman Sachs, Morgan Stanley and then Credit Suisse (‘CS’). He left banking in 2018 in order to, I accept, support the wife and to manage the renovations of the intended family home, (the ‘London home’) which is a very valuable and substantial property in North London. His disclosure at the time of the parties’ PNA in 2019 was that he had a net capital worth (excluding any gifts from the wife) of £415,000, comprising various property interests, and around £50,000 in cash. He also had some rental income. In addition, he owned a £200,000 Bentley which the PNA recorded that the wife had given him, and various watches, which brought his entire wealth up to £650,000.[5]The parties began cohabiting in 2015, and entered into the PNA on 11 March 2019. The agreement, which both accept was properly concluded, disapplies the principles of compensation and sharing. The parties married on 12 October 2019, and separated in early May 2023, although the wife puts the true end of their relationship to the Autumn of 2022. There are no children of the marriage. The husband’s entitlement increases under the terms of the PNA with the length of the marriage. It is accepted that the duration of the marriage for the purposes of the PNA is some 4 years, which produces for the husband by reason of the table at clause 2.16.1 of the Agreement an entitlement to a lump sum of £6.4m at the marriage’s end, in addition to which he will also retain his own separate property, his share of any joint property, and any gain from ‘seed capital’ as defined in their agreement. The total figure for him before the issues taken before me are into account would be £6,449,802, as both parties accept.[6]The parties also both accept that there is no reason why their PNA should not govern the outcome of these proceedings. As explained, their issue is about how much of the value already received by the husband should be treated as his Separate Property under the agreement, and how much treated as receipt by him on account of his entitlement. Although I have not been referred to updated figures for his current wealth, his Form E disclosure as at September 2023 stated that outside of the sum which he would receive under the PNA, his personal wealth stood at £4.25m. He was able to invest around $3m into an investment fund in November 2022, and has also paid some £1.64m towards his costs of these proceedings.[7]The potentially relevant clauses of the PNA can be extracted and set out as follow: DEFINITIONS “Separate Property” means property brought into the marriage by either party as identified in [the attached appendices] or acquired by them during the marriage through inheritance, inter vivos gift, family trusts, or business interests and/or which is subsequently converted to other assets including the Matrimonial Home… “Seed Capital” means the specific part of Wei-Lyn and Ardal’s Separate Property… which they have specifically agreed by Deed will be used…jointly as the initial or subsequent investment into a joint venture or family office and which will continue to be treated as their respective individual Separate Property and not as Joint Property “Gain from Seed Capital” means any income or capital appreciation derived from Wei-Lyn and Ardal’s respective seed Capital but not the Seed Capital itself…if Wei-Lyn uses any part of her Separate Property as Seed Capital, Ardal acknowledges and accepts that in the event of divorce, the Seed Capital will revert back to Wei-Lyn in its entirety. In the event that any profit/gain is generated by Ardal’s endeavours…then this gain only will be shared… “Joint Property” means any property acquired by the parties after the date of the marriage to include real property or business interest or investments acquired by the parties by whatever means to include purchase, gift, debt, inheritance or otherwise where the legal title is held in joint names to include for the avoidance of doubt the joint account that Wei-Lyn and Ardal are setting up as provided for at paragraph 2.9 below… “Exceptional one off Fund” means a one-off lump sum payment of £100,000 which Wei-Lyn will pay to Ardal following the signing of this Agreement. For the avoidance of any doubt, this is a one off payment which Wei-Lyn and Ardal acknowledge and accept is intended to provide Ardal with financial security in the event that the marriage breaks down and he is asked by Wei-Lyn to leave the Matrimonial Home. Ardal accepts that he alone has sole responsibility of how this fund is utilised but he agrees and accepts that it should be used primarily towards interim accommodation arrangements and living expenses. Ardal accepts that any financial mismanagement of this lump sum payment will not be “topped up” by Wei-Lyn. PREAMBLE Paragraph 2.8 …Since ceasing full-time employment in February 2018, Ardal has been involved in dealing with the rebuilding and refurbishment of the London home…At present Ardal is meeting most of his day to day personal income needs from his own personal savings. Since February 2018, Wei-Lyn has been paying for all household bills and other general expenses in full… Paragraph 2.9 As regards their finances, Wei-Lyn and Ardal intend on setting up a joint bank account in October 2019 which will be regarded as Joint Property irrespective of the contributions either Wei-Lyn or Ardal make to it from time to time. Both parties acknowledge and agree that Wei-Lyn will be transferring £250,000 from the outset into this bank account. It is also intended that Ardal will contribute financially towards this joint bank account and will transfer approximately £100,000 into it following the sale of his interest in the flat at New Atlas Wharf which he owns jointly with his father. Thereafter Wei-Lyn acknowledges and agrees to keep the joint bank account topped up to a minimum of £250,000 up until January 2022 when she will thereafter increase this to a minimum of £500,000. The purpose of setting up this joint bank account is to cover all utility bills and general household expenses at the Matrimonial Home and also both parties’ day to day living expenses. Both Wei-Lyn and Ardal acknowledge and accept that in the event of divorce, the joint bank account will be closed and the balance divided equally between them. Paragraph 2.15 Ardal and Wei-Lyn acknowledge that neither has made a contribution to the other’s Separate Property and that this will remain their respective Separate Property during the marriage and will not become part of their Joint Property as a result of the marriage. In the event that Wei-Lyn or Ardal use any of their Separate Property for the other or for the benefit of them both they both fully accept that neither will acquire any interest in the other’s Separate Property unless it has become Joint Property as defined in this deed. Ardal and Wei-Lyn also undertake by signing this deed that they shall not seek any disposition or distribution of capital or income or any other benefit (whether by advancement, appointment, or otherwise, and whether directly or indirectly) from the other as this will be considered their Separate Property other than as set out in this agreement. Paragraph 4 In the event of a divorce, Wei-Lyn and Ardal will recover their Separate Property, their respective shares of any Joint Property and any gain from Seed Capital but will not make any claim against the other’s separate property to include any Seed Capital or income… any gain from Seed Capital will be shared… EFFECTIVE PROVISIONS Paragraph15.1 …It is only in the event that Wei-Lyn and Ardal agree in a specified subsequent Deed that part of their Separate Capital will be used as Seed Capital that the gain from Seed Capital will be shared… Paragraph15.2 Any property acquired during the marriage by Wei-Lyn or Ardal by way of gift…shall remain the Separate Property of that Party during and after the termination of the marriage. Paragraph 20 Nothing in this deed prevents Wei-Lyn or Ardal from voluntarily making lifetime gifts to each other…[8]The determination of the parties’ differing contentions turns principally on the resolution of four factual issues between them, which can be framed as follows:a. When the husband took £1.405m from the parties’ joint accounts between 2020 and 2023, as he admits he did, was it pursuant, as he says, to an agreement between himself and the wife that he could do so, and that the money so taken would then consensually become his Separate Property within the terms of the PNA, or was there no such agreement? And if not, did he take the money in bad faith, or honestly believing that the wife was in agreement?b. When the husband took £2.05m ($2.435m) from the wife’s Credit Suisse mortgage account under a Power of Attorney on 18 November 2022, as he admits he did, was it a gift, as he says, or did he take the money in bad faith?c. When the husband took £1m from the parties’ joint account, soon after its transfer from the wife’s sole account, on 8 April 2023, as he admits he did, was it a gift, as he says, or did he take the money in bad faith?d. Finally, the husband has produced during the proceedings three emails which he maintains are genuine, and which he says evidence clearly that his case in relation to the payment of £2.05m at (b) above is made out. The wife maintains that these documents are not genuine but were created by him during and for the purpose of these proceedings.[9]Of course, the determination of these issues will do no more than serve as the factual backdrop against which the fair implementation of the parties’ agreement contained in the PNA will be determined, within the context of the factors in s.25 of the MCA 1973. Mr Glaser KC for the husband says, rightly, that it is not usually desirable for the court to enquire, in minute detail, into financial transactions between the parties during a marriage. He maintains that, both prior to and during the marriage, the wife made frequent and substantial ‘transfers and gifts’ to the husband, and that the wife now only wishes to undo such gifts ‘out of unhappiness and bitterness’. She is accused of wishing to ‘turn back time’.[10]The husband’s case is that such payments were made initially from her account to his, and then after their marriage through their joint accounts, set up at the end of 2019. He says that the wife can be assumed to have been monitoring these accounts, and that she therefore, at least tacitly, agreed to his removing of the sums now in dispute. It is acknowledged that the payment of household bills and other expenses by the husband from the joint account was completely intended, and indeed that process was expressly set out in the PNA. The controversial element is whether there was ever any agreement or acceptance that he would also be entitled to take money into his own accounts to provide him with ‘financial security’. Effectively, his case is that he had a general permission to remove money from the joint accounts into his own, and that such money would then, by agreement, become his Separate Property under the PNA. Mr Glaser acknowledges that the PNA nowhere provides for this to happen, but says that its use by the parties can be taken to have expanded beyond its prescribed bounds.[11]Mr Glaser has been very clear that there is no room here for any finding that there was a misunderstanding between the parties. He says that the disputed emails are genuine. He says that the court should find clearly that the wife both knew and accepted that all of the disputed payments once made would become the husband’s and that they should all therefore be treated as his Separate Property for the purposes of the implementation of the PNA. He is clear that the wife has been lying to me about her state of knowledge. He accuses her of being a woman who is willing to falsify documentation to achieve a desired result, and that her evidence is ‘unbelievable’. The wife says otherwise, and invites me to deduct the sums received from the amount now due to the husband. One thing that Mr Glaser has not explained to me, she argues, is why there is no reference to the arrangement on which he relies in the PNA if the pattern of behaviour which he asserts was in existence before the marriage, and so at the time that the document was signed.[12]The three disputed emails. Of the four issues identified above, I shall deal first with the disputed emails, as this is evidential, as opposed to going to the substantive issues in the case. Nonetheless, it may also have far-reaching consequences for the credibility of one or other of the parties. The husband’s case is that the emails were sent to the wife, and that she received them, but that she has since probably deleted them from her system. Mr Glaser asserted that no expert has been invited to examine her email account to identify whether that might have been the case, despite each side having instructed one in relation to the genuineness of the emails during the course of the proceedings. The wife’s team does not accept that this assertion was accurate. Mr Glaser has not, moreover, identified that the husband’s team made that request but were refused. However, he does point out that it is for the wife to prove her case in relation to this allegation, which I accept.[13]The emails in dispute were produced by the husband in March and April 2024. They relate as explained to the payment of £2.05m which the husband took from funds held after a remortgage of the parties’ London home. . In a statement dated 5 March 2024, he made the assertion that the wife “had to sign off all the paperwork with both EFG and CS regarding the mortgage and the release of funds to me”, and to demonstrate her knowledge of the transaction, he exhibited what appears to be an email from him to CS dated 18 November 2022, into which on its face the wife was blind copied. That email asked CS to transfer $2.435m (£2.05m), from one numbered account to another, which would leave the recipient account with $3.2m. That email was sent. The issue is as to whether it was ever blind copied to the wife.[14]The way that the email was produced has become a matter of significant concern in the proceedings. Rather than simply forward a genuine and easily provable email chain to his solicitors, what the husband did was to create a PDF copy, which its metadata shows was created by him on 8 February 2024, and last modified by him 8 minutes after initial creation. Whilst I accept, having heard the oral evidence of the two experts, Mr Tonks for the husband and Mr Beckett for the wife, that this does not necessarily mean that the original text of the email was altered (as he could have done no more than saved a separate copy of the document), it is equally not inconsistent with the document having been modified, before it was sent by the husband to his solicitors. It is the case that if a separate copy PDF had been saved, no original copy has ever been produced, which might have proved that no amendment had taken place. The husband cannot now identify the device on which the PDF was produced.[15]Subsequently, on 17 April 2024, the husband produced some replies to questionnaire to which he exhibited two further emails. The same issues with their provenance have been uncovered. One of these was another from the same chain as that already produced, again purporting to show the wife blind copied to an email sent just under three hours after the earlier exhibited email on 18 November 2022. The metadata shows that the PDF was created by the husband, this time on 23 March 2024, and last modified by him 4 minutes later. Again, it was the PDF copy that was provided to his solicitors, and not the original email chain. Once more the experts agree that the metadata is neither probative of, not inconsistent with, amendment of the document. Again, the husband has not satisfactorily explained why he took this course.[16]At the same time the husband produced a further PDF showing an email apparently dated 20 August 2022, at the head of a chain of earlier genuine emails. This document was created by him on 26 March 2024, and was last modified 14 minutes later. As with the earlier PDF produced, the experts agreed that whilst the email at the head of the document could have been added to the PDF, it need not have been. With this last document, the husband accepted that it was the product of two original documents having been ‘combined’, as the first page bears the time stamp 10.55, and the second, 11.05, the time that the metadata demonstrates that the document sent to the solicitors was created. The head email, that in dispute, is on the first page. If genuine, it would provide the most powerful support imaginable for the husband’s case in relation to the payment to him of £2.05m. Ostensibly sent by the husband to the wife, it reads:
‘Also my love, I've just been going through all of the numbers again and to confirm the equity release will be a little less than we were hoping for at circa £2m. I will leave this in your CS account until my fund is ready to launch (more interest for you [smiley/wink emoji] and then transfer to my sole CS account. “I'm in the process of sending the funds from my old Saxo portfolio to my sole CS account, so that combined with your gift of the equity release will mean I can invest about $3m to start, which is basically the same as what I estimated in the fund presentation we did at my office last month…’
[17]Ther are a number of specific concerns about this email. Firstly, despite bundles comprising over 1,400 pages, it is almost the only document produced by the husband which makes any express mention at all of the c.£2m arrangement which he asserts. There is not one the genuineness of which is not in dispute. The email is the last of a chain which it does not naturally follow, being added, apparently as an afterthought, to an earlier conversation about a mortgage offer letter received from CS. The email also recounts, with almost unnatural precision, the husband’s case about the funds, including his use of the words ‘equity release’ to refer to the £2.05m taken, which Mr Chamberlayne KC for the wife argues was nothing of the sort, being rather the residue of a 2021 drawdown which if not taken would in fact all or largely all have been needed to discharge further mortgage costs and property bills. By also referencing the ‘funds from his old Saxo portfolio’, the husband is alluding to the remnant of the £1.405m also at issue in the proceedings, about which the wife says that she was otherwise unaware; and by referring to the fund presentation made in July 2022, the husband also apparently evidences a hotly disputed event which goes crucially to his credibility. It is noticeable that there is no evidence of any response to this email from the wife.[18]The husband now accepts that the wife did not ‘sign off all of the paperwork’ regarding the release of funds to him, rather that he effected the transfer of the £2.05m using a Power of Attorney which he held over the account. These emails therefore represent the high point of his case that she was both aware of and in agreement with the transfer. It was therefore highly relevant when, following a hiatus created by the hearing in July 2024 which culminated in the chattels judgment, the wife’s solicitors wrote asking to inspect the husband’s email account in September 2024. After some delay, it was eventually asserted on his behalf that the originals of all of the disputed emails had been deleted by the husband, sometime after the PDFs had been created. He has said that he did so in July 2024.[19]Further, the husband had by then unaccountably sent the PDF of the second ‘BCC’ email to the banker who had received the originals, a Mr Dunn at CS, and apparently ‘given him permission’, if asked, to disclose these to the wife. The bank itself would never have been aware of any blind copying of the husband’s email, so the justification for the husband’s action in sending the PDF showing the wife blind copied is at best opaque. Mr Chamberlayne suggests that he was hoping by this to encourage the bank to simply send the PDF which he had submitted on to the wife’s solicitors when they made their inevitable enquiry.[20]The husband was then, predictably, asked why he had deleted all of these emails, crucial as they were to his proving his case as to this central issue between the parties. He responded that he had done so ‘following advice from therapeutic input, to dispose of aspects of his life which may assist with moving on from trauma’. He was directed to identify the author of the advice, and he identified a psychotherapist whom he was seeing between August 2023 and March 2024, the month when the later PDFs were created. That gentleman, however confirmed that his notes make no mention of the advice to which the husband was referring. The husband then suggested that he was also taking advice at the time from family and friends, but this is of course not consistent with his earlier explanation. Finally, asked to identify the device on which the PDFs sent to his solicitors had been created, he said that he did not know, that it might have been a laptop which was subsequently stolen, or friends’ or parents’ devices, or devices found in hotels or internet cafes. In any event, no such device has been made available for inspection.[21]In his response, however, it is the husband’s assertion that the wife is just as likely to have destroyed the emails once received. This really bears little examination. As Mr Chamberlayne points out, when she first challenged the genuineness of the documents on the basis that she did not believe that she had received them, the wife could not have known, or suspected, that the husband would by then already on his own case have destroyed the originals. Had he not done so, it would have been very easy for him to have produced them and proved his case. That she took the point at all is therefore some evidence that she is genuine in her case that the disputed emails were never received by her. I accept that evidence from her.[22]In those circumstances, it is clear to see that the husband has had the means, the opportunity and the motive to create and doctor the disputed emails. On the balance of probabilities, I have no hesitation in finding that he has done so. To create and combine PDF copies of the documents makes no sense if the originals are identical in form to the PDFs sent. To save two separate files for the PDFs, some minutes apart in each case, requires proper explanation if they are not being amended, and none has been given. The duplicate files which must have been created have not been produced. It would be an extraordinary coincidence if the only direct evidence of three important aspects of the husband’s case were to be contained in a single email, not naturally following the chain to which it is attached, available only as a twice-saved PDF which has been susceptible to modification, and in relation to which the reasons given for its creation and the destruction of the original are unconvincing. To destroy the originals of all three emails during the pendency of these proceedings, ostensibly to help the husband to move on, whilst at the same time retaining numerous intimate photographs of the wife, which I shall deal with below, is properly unbelievable, and I reject this aspect of the husband’s case.[23]As to these photographs, it emerged from the husband on the day of the private FDR hearing before Sir Philip Moor on 19 November 2024 that he had just before set up a private Instagram site on which he had posted a significant number of personal photographs of the wife (although she did not know this at the time). He had also set up a separate website. He declined to provide her, or her lawyers, with access to the site, or with the photographs posted on the Instagram account, until directed to do so. He was evidently trying to cause her distress and to destabilise her at the point of the FDR hearing, perhaps to compel her to shy away from further contesting the proceedings. He accepted in his oral evidence that he had been wrong to do this. In similar vein, he also instructed a private investigator (to whom he had given a false name as well as his own) to loiter outside the wife’s London home on her birthday, and pose as a member of the press. He accepted that this in him was shameful behaviour during the trial, and that both incidents look like attempts to upset and intimidate the wife. I agree with him. His offered apology came far too late.[24]The sums in dispute. So, I shall go on to consider the disputed payments made to the husband during the marriage without regard to the three emails, having found that the husband has created and/or doctored them. The fact that he has done this, of course, may be relevant to my consideration of the rest of the evidence about these payments, but I do remind myself of the direction in the well-known criminal case of R v Lucas (1981) 73 Cr App R 159, to the effect that just because I have found that the husband has not been honest about these emails does not mean that his underlying case about all of the payments is untrue. Indeed, Mr Glaser KC, whilst making no concessions about the emails, nevertheless was keen to stress that I should give myself that direction in this case. I will consider the evidence about each payment individually, and on its own separate merits. However, the fact that I have found that the husband has been prepared to produce forged documents to support his case will, whatever the outcome on those issues, be potentially relevant and must be borne in mind when it comes to the issues of conduct and costs.[25]The payments totalling £1.405m. I therefore turn to the first series of payments in issue, which in fact cover the period from 2020 until 2023, and actually fall into two distinct categories. First, I have been provided with an agreed schedule which shows that between 13 January 2020 and 6 April 2021, a period of 15 months, the husband removed from the parties’ joint accounts a total of £655,000, which was then paid by him into his Saxo portfolio in 33 payments, of which one was for £15,000 and the rest for £20,000 each. Those monies were later paid into his Fund with Loh-Gronager Partners (‘LGP’), the investment fund that he was then in the process of setting up in 2022.[26]Between January 2022 and March 2023, a further 14 month period, the husband then took a further £750,000 deriving from the parties’ joint accounts and paid that sum in eight tranches from his accounts into his business, LGP. His evidence was that most if not all of this money has gone in discharging the not inconsiderable running costs of the enterprise. It is the wife’s case that all of these payments should be treated as funds received on account of his entitlement under the PNA, as, she says, they were all made without her knowledge or consent.[27]The £655,000. As explained, the husband’s case is that the payments taken by him in the first years of the marriage were merely following a pattern of provision and gifting which had pre-dated the marriage. The husband had given up his job with CS in February 2018, which was over one year prior to the signing of the PNA. In that document, both the fact that he had done that, and the provision made by the couple in consequence were clearly set out, as at March 2019. At clause 2.8 it is recorded that:
‘Ardal is meeting most of his day to day personal income needs from his own personal savings. Since February 2018, Wei-Lyn has been paying for all household bills and other general expenses in full…’ and at 2.9: ‘Wei-Lyn and Ardal intend on setting up a joint bank account… which will be regarded as Joint Property… The purpose of setting up this joint bank account is to cover all utility bills and general household expenses at the Matrimonial Home and also both parties’ day to day living expenses’
. There is also reference to an ‘exceptional’ one off fund of £100,000:
‘intended to provide Ardal with financial security in the event that the marriage breaks down’, and which: ‘should be used primarily towards interim accommodation arrangements and living expenses. Ardal accepts that any financial mismanagement of this lump sum payment will not be topped up by Wei-Lyn.’
[28]The husband’s case has been that the transfers of £655,000 between January 2020 and March 2021 were made ‘in accordance with the understanding and agreement between him and the [wife] that he would have access to funds to build his own personal investment base, with the purpose of enabling him to build and demonstrate an investment track record.’ He sought to rely on the fact that the wife would ‘regularly transfer’ large sums to his sole account from hers, both before the marriage and then afterwards before the setting up of the joint account. He provided a table of such payments made between October and December 2019, immediately following the marriage but before the setting up of the joint account.[29]However, on analysis, all of the payments in that schedule proved to have been no more than simple reimbursement of joint expenses, and he could provide no other examples of payments being made to him from the wife’s sole accounts either before or after the marriage to support his case. This is hardly surprising, given the very clear terms of the Deed which they had signed in the previous March, intended to govern their marriage which had taken place in October 2019. There was nothing in the Deed which enabled him to withdraw funds for his own investments, which he was constrained to admit would certainly have appeared there if actually agreed. Indeed, the Deed makes clear that neither of them had made any contribution to the other’s Separate Property to that point. The husband’s case that there was already before the marriage a history of significant payments directly to him to supplement his capital worth, to provide him with financial security, is simply not made out.[30]Thereafter, once the joint account was set up in December 2019, the husband almost immediately began removing the funds which eventually comprised the £655,000. Whilst he did initially make his own pre-agreed contribution of £100,000 in tranches to the account, within days he withdrew in four further tranches the first £75,000 towards his personal investment. Eventually, these funds would be transferred into his Saxo Portfolio, and then become what he described as ‘his’ contribution, along with £2.05m from the mortgage account, to the starting Fund for LGP, which he had set up despite the wife’s misgivings, and which bore his adopted surname. She had previously understood, I accept, that he would concentrate on managing her funds, rather than seek outside investors as he was now doing.[31]Initially, when challenged in these proceedings about the funds taken by him from the joint account, the husband simply responded that there was no constraint upon him doing so. Later, he accepted that the payments taken were not individually authorised, and tried to argue that they reflected the prior pattern between the parties. The difficulties for him are not only that there was no such prior pattern, but also that the PNA neither makes reference to it, nor allows for any ambiguity in the parties’ understanding of their arrangements. The only reference to his financial security in the Deed – to be provided by an exceptional ‘one-off’ payment of £100,000 – was expressly not to be ‘topped up’ if mismanaged. It is tempting to see the husband’s use of the reference ‘top-up’ on payments which he made to himself from the joint accounts as at least obliquely referencing that provision.[32]The husband’s case is nevertheless that the wife was well aware of all of these transfers, as he says that she kept a careful watch over all of the accounts, and that her failure to intervene was a tacit acceptance of the position. He says that she well understood that he needed to have ‘skin in the game’ in order to be taken seriously as the manager of an investment fund, and that she therefore should be taken as having approved at the time of his actions. I do not accept that this was in fact the position up until the end of 2022. The wife emailed the husband on 19 January 2023, before as I find she was aware of any of these impending issues, saying:
‘You run all of the day to day things in our lives and also all the larger things such as financing etc. I have paid no attention to all of this and have relied entirely on you, thinking as long as Ardal knows, its okay, I do not need to know…’
. I accept that this properly reflects the position up to this point, having heard both parties cross-examined on the issue.[33]Mr Glaser suggests that the analysis of the movement of this money over a three year period would ‘take the law into uncharted territory’, and says that there is a risk of discrimination against the husband – comparing his actions to a wife using a joint account to buy jewellery and handbags for herself. That is an unfortunate and inapt analogy. It is very clear that the husband was entirely permitted to spend money on himself during the marriage for his day to day living, for luxury items, to renovate their home and to maintain the family lifestyle. However, the systematic removal of money to provide a capital fund for investment is a very different matter, converting the wife’s money provided to meet joint outgoings into the husband’s Separate Property. That is expressly contrary to what the parties had agreed in the PNA. I reject the husband’s case that those funds had been so converted by his taking them. The wife had made them available to meet joint expenses. If they were not so employed, but were removed from the joint accounts, then they would revert to being notionally hers in the absence of any different express agreement.[34]The £750,000. The position in relation to the later taken £750,000 is slightly different, in that it is acknowledged by Mr Chamberlayne for the wife that these funds appear to have been primarily used to pay for the running and operating costs of LGP, a body into which, despite her misgivings, the wife did make investment, and of which she was certainly aware. Indeed, in her evidence to me she acknowledged that, if she had known during the marriage that the husband was taking funds from their joint account to fund the setting up and running costs of LGP, she would have accepted it. However, she stressed, she was not in fact told about it.[35]Mr Glaser points to the very expensive costs of setting up a Berkeley Square office and employing staff, and suggested that the wife must have understood that all of that was being funded by the husband from the joint accounts that she was funding, given the lack of any money of his own available to the husband. I am satisfied that the wife was not made aware of these payments, nor ever told how LGP was being funded. She said that she had assumed that he was paying for it from his own funds, and it seems that she never gave the question very much thought until their marriage came to an end. If, as the parties had originally intended, rather than setting up LGP the husband had simply run and managed a private office for the wife’s funds, then I have no doubt that she would have been more than content to pay for that. The husband’s determination to engage with other investors, and try to carve out his own separate capital interest in the fund which he would have under management, does suggest that his aim was to create for himself independent wealth as quickly as possible, to supplement his entitlement under the PNA in the event of marital breakdown. That was not an agreed strategy.[36]I will deal with the fair treatment of this element of the monies taken later, but I am satisfied that, although not authorised, this amount of £750,000 once taken was put to a use that falls broadly within the framework agreed by the parties in their PNA. It therefore must be considered separately from the earlier sums amounting to £655,000.[37]The sum of £2.05m. I now turn to the sum of $2.435m, or £2,050,417, which the husband took from the residual mortgage funds in November 2022, and proffered as the major part of his separate contribution to the Fund which he was setting up through LGP. Here, it is important to remember that he has relied on the evidence of four additional witnesses; A, B, C and D, albeit that Mr Chamberlayne chose not to cross-examine the latter two. The husband’s case here, as put by Mr Glaser in his written opening, is:
‘The Husband saved the Wife significant sums in interest payments as a result of the remortgage of the borrowing on the FMH. The negotiation of the re-mortgage coincided with money being invested into Loh-Gronager Partners and it commencing operation. In order for the Husband to persuade others to invest in his fund, he needed ‘skin in the game’
. He had little money to invest himself (as the Wife well knew) and so it is his case that the Wife, in recognition and gratitude for the saving, agreed that he could take $2.4m to invest.’[38]Mr Glaser, in closing, sought to make some capital from Mr Chamberlayne’s decision not to cross-examine C and D. However, whilst both these witness gave evidence about their perceptions of the husband’s motivation and interest in setting up LGP, which is not in doubt, they added little in terms of any evidence of the wife’s involvement to or agreement with the husband’s taking of these funds. D does say that the setting up of the fund would be discussed at group dinners at which the wife would be present, but he does not say that his understanding of the background came from her, rather than from the husband himself. I am satisfied that their evidence is not therefore pivotal to the determination of this issue.[39]A and B were cross-examined. B does assert that both husband and wife were ‘open’ about the fact that the wife was giving the husband some money ‘from the remortgage’, and supporting his investment with LGP. A says that he remembers the wife ‘considering gifting some money’ for the husband to invest in the fund, and discussing the importance of the manager of the fund having ‘skin in the game’. He says that the fact she was going to give him some money to invest was openly talked about. There was evidently an earlier plan for the husband to start a fund with C which came to nothing. Their evidence however lacked significant detail about the timing or circumstances of the alleged gift.[40]At the same time, the husband has launched a root and branch attack on the wife’s probity and honesty, accusing her of being willing to amend a financial document for gain, and of knowing more than she has admitted about the mortgage process and her own investment into LGP.[41]To determine what has actually transpired it is necessary to consider the actual mortgage process which led to the funds which the husband took in November 2022 becoming available. The CS mortgage offer was made on 25 August 2021, to enable the funding of significant works planned for the parties’ prospective London home, after refinancing the existing mortgage. The total loan was for £43.75m. Part one provided the refinance, as well as an equity release of some £7.5m which was initially used to fund repayments of the loan and other property costs. The second tranche of £15m was intended to fund the development of the property, and release further equity only if there was any surplus. The reality was that all of that second tranche went to defray expenses which had already been incurred at the point of a refinancing in 2022, so there was no ‘equity’ released from that second instalment. On 24 August 2022, CS had offered a recalibrated loan offer for the remainder of its term, and the £15m was refinanced on 26 August, all of which was immediately allocated to the principal and interest incurred in respect of the original £15m tranche. A previously expressed requirement for CS to have significant assets under management, originally postponed, was dropped by them. Of the money released from the first instalment, however, some funds were still available in the Autumn of 2022. As at 30 August 2022, £4.07m remained in the account. Through September and October 2022, those funds were reduced to just £2.37m, as further payments were made to the developers of the London home. I have found that the husband did not send the explanatory email to the wife on 20 August 2022, anticipating his removal of ‘circa £2m.’, as he claims.[42]Further interest payments were due of nearly £320,000 on 28 November 2022 from that account. On 18 November, using his power of attorney, the husband directed CS to take $2,435,000 ‘(or everything except £320k)’ from the account, and use it to subscribe into the LGP share class, together with the balance of the funds taken by him from the joint account between 2020 and 2021 – now £640,000 – alongside a further $4.8m which was coming from W’s EFG account. On the same day he sent to the wife a photograph of his computer screen (which he said was not in fact taken with her in mind) from which the details of the transaction are effectively impossible to discern. This is the same day as the two emails from the husband to CS purport to blind copy in the wife, but which, on the balance of probabilities, did not do so.[43]The husband also relies upon an ‘investor presentation’ that he supposedly made to the wife on 9 July 2022, and it is right that at one stage that date appears to have been pencilled into the wife’s diary for such a presentation to take place on that day. The wife says that it never happened and that the diary was subsequently changed. There is now in the bundle a series of slides which the husband says represents the presentation which the wife was shown on 9 July, exhibited to his March 2024 statement. One page of that presentation references that the husband’s contribution will include $2m ‘from equity release’ at the London home. This is therefore in itself not completely consistent with the reference in the later generated August 2022 email to the sum of £2m being ‘a little less than we were hoping for’, but as I have found that this email was not genuine, that is not significant.[44]The husband also makes reference in the March 2024 statement to a call on 5 July 2022 when he says that ‘the mechanism for releasing the £2m equity’ was discussed – but at the same time makes the assertion that the wife had to sign off all the paperwork regarding the release, which was untrue. He also suggested in the same statement, as elsewhere, that £30m had been used to repay the original EFG mortgage (it was £20m), that £11m was set aside for the works at the London home (they cost much more), and that the remaining £2m was gifted to him by the wife. Whilst others have testified to having seen the presentation themselves, there are no witnesses to the wife’s attendance there that day, nor any evidence beyond the husband’s bare assertion that the sole page referencing her contribution was shown and explained to her then or at any other time. This was the same statement to which the husband first sought to exhibit an email untruthfully indicating that the wife had been copied in on 18 November 2022 to communications about the transfer.[45]Furthermore, it was apparently the case that the wife for the first time took anti-depressants on that day, a matter of which the husband was made aware 3 days later, and which I accept. She thus may well have cried off the presentation some days before 9 July. I am not satisfied that the wife was ever shown the page referencing her contribution in the form in which the husband now relies on it.[46]There is therefore no reliable written evidence that the husband ever told the wife that he was taking the £2.05m, nor that she ever offered it to him as a gift. Equally it is hard to see when she would have made such offer within the chronology of the remortgage that has emerged, given that the actual amount available on that day could not with precision have been known very much earlier. It is also impossible to see that she could have done so, in such a way that no reference is ever made by either party to an offer in any of the genuine email traffic subsequently between them. Whilst it is not impossible that the husband may have created the fakes to correct that deficiency in circumstances where he was actually telling the truth, in all of the other premises, that is highly unlikely to be the case. I accept too that the wife only discovered that this money had been taken and paid into the fund when she was informed so by CS not long before her solicitors first contacted the husband’s about it on 15 September 2023, and that she could not therefore have raised it previously.[47]In any event, it is clear that the funds so taken by the husband were in fact required to continue to service the mortgage account. On 20 January 2023 the wife was persuaded by him to pay a further £1,500,000 into the account, effectively replacing the funds that he had taken. This had followed the husband approaching her in late December, complaining of an unexpected property bill and underperformance by LGP, but not as I find explaining that he had in the previous month cleared out the account to provide a contribution ostensibly from him into the LGP Fund. I therefore accept the wife’s case in relation to this payment, and reject that made by the husband.[48]The payment of £1m. To consider the final disputed sum, £1m taken from the wife’s sole account and paid to the joint account from where it was immediately taken by the husband on 8 April 2023, it is necessary to look at the six months between that date and the taking of the previous payment in mid-November 2022. It is fair to say that during that period the parties’ marriage fell apart. The husband accepts that he began his relationship with another person his current partner, at the end of November, although he denies that it became physical until late January 2023. Although little turns on it, I consider it far more likely that their physical relationship began in November 2022, given that they were holidaying in some style together already by the early months of 2023.[49]It is clear through this period that a large number of payments were being made by the husband, from the parties’ joint funds, to a variety of different females for services which are clearly misdescribed in the husband’s bank statements – most often as a payment for ‘flowers’. The husband first pays his new partner £5,000 on 27 November 2022, and makes frequent but irregular payments to her thereafter. He denies that the payments to her, or to the others, amount to paying for sexual favours, as Mr Chamberlayne suggests. Whilst I need make no findings about that, it is very clear that by the first weeks of 2023 the husband was engaged in an expensively financed relationship with his new partner, in parallel to his marriage. When he went on holiday with the wife, he directed staff to make his Bentley, a present from her before their marriage, available for his new partner to use. This situation could obviously not continue for long and, despite the husband’s initial denial, he eventually was constrained to admit the relationship, in early April 2023.[50]Meanwhile, the wife had emailed the husband on 19 January 2023, as described above, but also saying:
‘There are multiple contractors whose names I do not recognise and understand what it is they do. If it pains you to explain this to me, as we discussed on 30th of Dec about you feeling you need to come to me with your ‘cap in hand’
I can take over every transaction that needs manual payment which is not already set up for direct debit.’ She then provides a list of not recognised contractors, before concluding:
‘I know we said you can run your own expenses out of the joint account and that is fine. I am just trying to understand.’
This communication I am satisfied accurately describes the wife’s state of understanding of the detail of the parties’ finances at the start of 2023. She concludes by asking for a card and some flowers for Valentine’s Day, suggesting that she and the husband at this stage were in very different emotional places, and had a very different understanding about the state of their relationship.[51]The husband’s case is that the payment on 8 April 2023 was a gift from the wife to him, offered in a desperate attempt to enable the marriage to survive. At one stage he also suggested that it was intended as a ‘top-up’ to the exceptional one-off fund referred to in the PNA, intended to apply only upon marriage breakdown. Those two explanations appear contradictory. What is clear is that the parties had a conversation on 8 April, following which the wife arranged to have an online counselling session with her therapist, to discuss how she was feeling. The wife says that after their conversation, but just before the session with her therapist commenced and, in her absence, the transfer of £1m was made first from her sole account into the partes’ joint current account. The husband says that she made this transfer, in his presence, which she denies. What is accepted is that immediately thereafter, he took the funds from the joint account into his own account.[52]Next, whilst the wife was in the therapy session with her therapist, the husband produced a document in which he set out what he described as the parties’ respective ‘needs’, which he then handed to the wife after the session had concluded. On her side, he referenced her use of some stored embryos, and that she should be able to choose which of their friends she would remain in contact with. On his side he spoke of removing his possessions from the London home in the immediate future, and for the need for significant further funds to be provided to him - £1.8m to run his fund for five years, for the wife to make a gift of the $4.8m that had been paid into the LGP fund as her contribution, plus under the heading ‘Financial Security’, for £15m to enable him to make yet further contributions to the fund, and another £5m on top as a fund from which to live. That this was not how the wife understood his position prior to her therapy session is made clear by texts which she sent to her therapist soon afterwards:
‘Ardal just said that he wants a separation’, ‘This is totally different from one hour ago’
. There is no reference at all made to the £1m which had been taken minutes before the session began.[53]It is the wife’s case now that the husband has most likely effected the transfer from her sole account to the joint current account himself, and she points to an earlier payment of £100,000 taken from her account at the end of March 2023 which she also believes to have been effected by him. She says that the husband has the access codes to her accounts and could have done this. He denies ever having done it, or having the codes to access her sole account.[54]What is very clear is that, whoever made the first transfer, at the time when it was made, the wife had not by then understood that the husband considered the marriage at an end, whereas the husband had very definitely formed that view. Any payment which he accepted from her as a payment which might keep him in the marriage, which is his case, was therefore obtained completely under false pretences. However, I am clear that the lack of any reference to the payment in the document produced by the husband during the therapy session strongly suggests that he knew that the wife was not yet aware that the money had been taken, and so it could not then be referred to.[55]In all of the circumstances, I am entirely satisfied that I prefer and accept the wife’s account of this day, and I accept her evidence that she has no recollection of making the transfer from her own account. I find that the husband could, and did, take that money, first into the joint current account and then into his sole account. It is telling that the wife has never previously made a transfer into the joint current account, but only into the reserve account. It is relevant as well that two attempts were required before the initial transfer was accepted. I also note that the reference used for that payment was ‘Top-Up’, routinely used by the husband to describe his moving funds between and from the joint accounts. The use of the term ‘Gift’ as the reference on the transfer into the husband’s sole account was effected by him alone and is manifestly self-serving.[56]Outcome. So, in those factual circumstances, how should the court determine the husband’s financial claim under the MCA 1973, in light not only of the PNA which both of them accept operates as a principal determinant of the husband’s claims, but of the circumstances outlined above that have led to the need for this lengthy and hotly contested hearing?[57]Given my findings above, I can comfortably determine that the payment of the £1m taken by the husband on 8 April 2023 in the circumstances described should not be treated as the husband’s Separate Property, but should be treated as a sum already received by him on account of his entitlement under the PNA. So too, I find that the sum of £2.05m taken by the husband from the mortgage account in November 2022 and paid by him into LGP should also be treated as funds taken by him on account of that entitlement. Less straightforward to determine is the appropriate treatment of one of the separate elements of the sums taken from the joint account between 2020 and 2023. Given my findings above, I can determine that of those sums the payments totalling £655,000, and which were ultimately invested into LGP, should be treated alongside the £2.05m taken from the mortgage account, and computed as being taken on account of the husband’s entitlement under the PNA.[58]In relation to the subsequently taken sums totalling £750,000, however, these are sums which, I am satisfied, would naturally have fallen into the category of joint expenses, even if not consulted about. I bear in mind that the wife herself acknowledged that, had she known that they were being used for this purpose, she would probably have approved of that use. However, she was not consulted, and Mr Chamberlayne on her behalf now argues two separate points:a. First, he says that the husband’s conduct in these proceedings, particularly in relation to the doctored emails, the Instagram account and the use of the private investigator, as well as the way in which he has taken funds behind the wife’s back during the marriage, has been conduct which it would be inequitable now to disregard, pursuant to s.25(2)(g), MCA 1973. He says that even if I would not otherwise have deducted these payments from those which the wife now has to make to discharge her obligation to the husband under the PNA, I should do so after consideration of the way that the husband has behaved, as I have found above. Indeed, he goes further and says that any residual payment due to the husband under the PNA should be disallowed because of the way that the husband has behaved.b. Second, he also argues that in considering how I should apply the PNA, I should achieve the same result by unusually considering fairness to the payer in adopting the formulation of the Supreme Court in Radmacher v Granatino [2010] UKSC 42, at [75] where Lord Phillips advanced the proposition:
‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’
[59]Considering the question of conduct, I should say first that the above determinations of outcome in relation to the other payments have not required the application of s.25(2)(g), and merely follow naturally in light of my findings. The test, as set out in the statute at that sub-paragraph, is of course that a party’s conduct should be considered if it is such that, ‘in the opinion of the court, it would be inequitable to disregard it’. In this context, inequitable can mean no more or less than ‘unfair’ or perhaps ‘unjust’, and fairness is of course also the key element of the test at paragraph 75 of Radmacher set out above. This drives me to conclude that there should be no real difference between the two tests, and that they should in effect be considered together. I accept that one goes primarily to the fair implementation of the agreement, the other to broader fairness, perhaps once the impact of the PNA has been considered.[60]I also acknowledge that the higher courts have sought for policy reasons to limit to only the most serious instances those occasions when first instance judges will alter the outcome of a financial remedy application by the application of s.25(2)(g). However, when the implementation of a nuptial agreement has been in issue the application of the principle of fairness has not noticeably been so constrained. In this case, however, I am satisfied that the husband’s behaviour, as I have found it to have been, comfortably crosses the threshold for the application of s.25(2)(g). I need not therefore go on to consider any possible tension between the application of the tests in these different areas.[61]Having concluded what the headline interpretation of the PNA would otherwise be, the effect of both elements, under Radmacher as well as under the statute, is to suggest whether that outcome should be rendered different specifically because of the way that the husband has conducted himself. I should also make clear that this excludes any consideration of what the appropriate costs order might be; and that factor will clearly be of enormous significance to the parties given the scale of their combined costs identified at the outset of this judgment.[62]There is no doubt that the husband’s behaviour throughout the marriage and during these proceedings has been deplorable on any view. Firstly, as I have found, he has taken significant sums during the marriage from joint accounts funded by the wife. These accounts, pursuant to their agreement, were intended to provide primarily for the funding of their joint living expenses, as he knew. The husband has then essentially put those funds into investments and accounts in his own name, later to maintain them to be his Separate Property. In doing this he was acting expressly contrary to the parties’ agreement set out in the PNA that ‘neither will acquire any interest in the other’s Separate Property unless it has become Joint Property’ as defined in the deed. I have rejected his case that any of these funds have been gifted to him by the wife, and he himself does not suggest that the funds which have been taken from joint accounts have somehow remained joint property.[63]Even if the husband had understood that money in the joint account was now joint property, he could not have sensibly thought that by taking it for himself it would become his Separate Property. The purpose for which the money in that account was intended was set out in the PNA, as the defraying of joint expenses. As the funds which he took did not derive from him, his removal of them from the joint account and their subsequent retention by him without permission can only have led to their regaining their original character as the wife’s Separate Property. They must therefore now be treated as such.[64]Whether or not he believed that he had a case to argue that they had become his, the husband took those funds well aware as I find that he was not authorised to do so, and he has contested the argument right to the conclusion of this trial. Furthermore, he has then during the proceedings sought to undermine, harass and unsettle the wife, in the hope that she could be deterred from fighting on against him: first by the unhelpful instruction of the lacklustre private detective; and second by the setting up and promulgating of the Instagram account that he used to publish photographs of the wife, with the object as I find of belittling her and embarrassing her, without allowing her to know exactly where and to whom the images had been published. He tried to defend his action at trial by saying that he felt threatened by the wife’s hostility and by her aggressive litigation tactics towards him, against which he said that he felt the need to take a stand. I reject that suggestion. I find that he has callously and quite deliberately sought to cause upset to the wife in the hope that she would be persuaded to drop the case and leave him with the outcome he was seeking.[65]Most seriously, he has then sought to undermine the integrity of the entire court process by his attempt to create false evidence in the shape of the three emails, two erroneously altered to appear as if they had been blind copied to the wife, and the third entirely concocted to try to corroborate the entirety of his otherwise unsupported factual case about the £2.05m taken by him in November 2022. This is the most serious level of litigation misconduct that may be seen in these courts. There is no doubt that it merits significant sanction, but whether solely in the arena of costs or also in the substance of the award made is less straightforward. Is it after all unfair to the wife for the court to treat these payments in a way that she acknowledged she might herself have done, had she been told that they were being made? There can be no doubt, though, that the husband’s actions are a significant factor in determining the balance of fairness.[66]Further, the husband has sought throughout to denigrate and criticise the wife through his evidence, complaining of her demands on him during the marriage, and accusing her of dishonesty in relation to the submission and amendment of official documentation. Even if this is true, it bears no relevance to the essential underlying facts around his seeking to take from her as much money as he could, whilst latterly showing little commitment to the marriage. Indeed, as Mr Chamberlayne points out, the parties cohabited for around four years before their marriage, and there has been no suggestion that the parties’ respective roles and their relationship changed after 2019. Indeed, the PNA very clearly set out how their financial relationship had been working, and would work going forward. The husband seems to have been unwilling from the start of the marriage to accept that, and has done all that he can to circumvent what the parties had agreed.[67]Indeed, the fact that the husband began to take amounts from the joint account almost as soon as it was set up suggests that he has throughout the marriage been preparing the ground for as lucrative a separation as he could contrive. Nevertheless, the parties have signed a PNA which clearly defines his entitlement given the eventual length of the marriage, and before considering the question of fairness to the wife, and between the parties, I would have been satisfied as indicated that the product of the implementation of its terms would be for the husband now to receive the headline figure of £6,449,802, less the amounts of £655,000, £2,050,417, and £1,000,000, a total to be deducted of £3,705,417, leaving £2,744,385 as his provisional net residual entitlement. I would not, without the additional consideration of his behaviour, have decided that the husband should have deducted from his award the £750,000 used by him to set up and run LGP, into which a significant investment of the wife’s funds had been made.[68]On balance, I am satisfied that the husband’s behaviour has been such that it would not be fair to the wife to completely disregard it in the computation of his entitlement under the PNA. However, I do not propose to deduct any more than 50% of the sums taken by him for the running of LGP, so that a further £375,000 should be deducted from his award. The effect of this will be that the parties will each have contributed equally to the running costs and expenses of LGP for the period of the marriage, which properly reflects the fact that $4.8m of the wife’s funds were invested, but that the husband neither consulted nor engaged with her about its progress and concealed from her completely his addition of a further £2.705m. in his name, which in truth derived from her. I am therefore notionally releasing her from what would otherwise have been a commitment to fund all of those costs as the parties’ joint expenses under the PNA, and requiring the husband to reimburse her for half of them. His net receipt will therefore reduce to £2,369,385.[69]I consider that in all the circumstances to be the fair outcome to the husband’s application for financial remedy, both in light of the PNA and in light of his conduct both during the marriage and since, and having considered all of the factors in s.25(2) of the Matrimonial Causes Act 1973, but before I come to the question of costs. I reject as too extreme the suggestion that the husband’s entitlement to receive anything under the PNA should be lost by reason of his conduct, again before costs come to be considered.[70]I have not yet heard any argument about the incidence of costs, but it will be of little surprise to the husband or to his advisors that in light of my factual findings, I consider that prima facie there is a real prospect that a very substantial order may be made against him. I refer the parties to the tests to be applied where the court is considering an award of indemnity costs as set out by Joanna Smith J in Cabo Concepts Ltd v MGA Entertainment (UK) Ltd & Anor [2022] EWHC 2024 (Pat), between paragraphs 16-18, and 21-23, and to which I made recent reference in a financial remedy context in TY v XA (No.3)[2025] EWFC 350.[71]I should add that the husband did not refer me to any updated financial position, nor has he sought to argue that any order which the court might make could be one which fails to meet his needs, however assessed. In those circumstances, I will not be able to consider, if a costs order is made against him, whether the financial impact of that order on the husband may lead to any hardship. That has been the husband’s decision.[72]That is my judgment.

Cited in 1 later judgment