FO v PN [2025] EWFC 327 (B)

[2025] EWFC 327 (B)B E T W E E N:
Between
FOApplicantPNRespondentIMPORTANT NOTICE This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on the condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of the family 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 will be a contempt of court.Daniel Bentham KC and Joshua McEvoy (Counsel instructed by Withers LLP, Solicitors) appeared for Applicant wife.Sarah Phipps KC and Jessica O’Driscoll-Breen (Counsel instructed by Kingsley Napley LLP, Solicitors) appeared for Respondent husband.Date 9 th May 2025
[1]This case concerns the financial remedies proceedings arising out of the divorce between FO (to whom I shall refer as “the wife”) and PN (to whom I shall refer as “the husband”).[2]The case proceeded to a final hearing over four days on 6th, 7th, 8th and 9th May 2025.[3]Both parties appeared before me by Counsel: Daniel Bentham KC and Joshua McEvoy (Counsel instructed by Withers LLP, Solicitors) appeared on behalf of the wife. Sarah Phipps KC and Jessica O’Driscoll-Breen (Counsel instructed by Kingsley Napley LLP, Solicitors) appeared on behalf of the husband.[4]Both parties have been represented before me at the highest level and the legal teams have worked impressively hard; but it has, of course, come at a high cost. The wife has incurred a total of £459,135 in legal costs and the husband a total of £337,796 – nearly £800,000 of family money has gone to lawyers, never to be recovered.[5]The court was presented with three electronic bundles running to more than 2,000 pages and a number of other documents have been exchanged during the final hearing. I have considered all the documents presented to me, in particular I have considered:-(i) A collection of applications and court orders.(ii) Material from the wife including her Form E dated 30th April 2024, her answers to questionnaire and replies to a schedule of deficiencies, and her witness statements dated 20th January 2025, 14th March 2025 and 23rd April 2025.(iii) Material from the husband including his Form E dated 25th May 2024, his answers to questionnaire and replies to a schedule of deficiencies, and his witness statements dated 17th February 2025, 19th March 2025 and 28th April 2025.(iv) Various expert reports from SJEs instructed on valuation and tax issues.(v) A Pre-Nuptial Agreement signed by the parties dated 22nd May 2012 and a Deed of Revocation dated 28th April 2022.(vi) Properly completed ES1 and ES2 documents and a detailed Chronology.(vii) Selected correspondence and other disclosure material.[6]I have also heard oral evidence from the wife and from the husband, in each case subjected to appropriate cross-examination. For case management reasons, to ensure that the case concluded within the time estimate of four days, I imposed a 3-hour time limit on cross-examination and a 2-hour time limit on closing submissions. I am satisfied that this gave a full and fair opportunity to each party to put forward their own case and challenge that of the other.[7]I have also had the benefit of full submissions from each counsel in their respective opening notes and their closing oral submissions.[8]The history of the marriage is as follows:-(i) The husband is aged 70. He is English but has at times in his life resided and worked overseas. He more or less fully retired in 2020 after a long and very successful and impressive business career, from which most of the family wealth derives, although he did some limited Non-Executive work between 2021 and 2023. He has a child from a previous relationship, namely X, now an adult, whose mother sadly died about 20 years ago. X has suffered from some mental health challenges in her adult years and continues to be partially dependent on her father. The husband is currently in a non-cohabiting relationship. He had some heart problems in 2020 (including undergoing an operation which hastened his retirement), obtained an autism diagnosis in 2023 and in recent years has been prescribed with the anti-depressant Sertraline; but it has not been part of his case before me that any of these health conditions has a significant impact on the current dispute, other than providing a background. He self-describes as being prone to a tendency to be “brusque and direct”, which he attributes to his autism and it was certainly possible to see some of this in his evidence; but he presented before me as a pleasant, courteous and intelligent person. He currently lives in the former family home (hereinafter referred to as ‘the FMH’) in England.(ii) The wife is aged 43. She originates from Country S; but has spent most of her adult life in Europe. She is an intelligent person who is university educated to Masters Degree level in Psychology and is a qualified teacher; although she currently works as a part-time nursery assistant. She obtained an ADHD diagnosis in 2021 and presented as a pleasant if slightly anxious person, perhaps inclined to self-analysis and a sometimes pained search for a solution to life’s problems. She currently lives in the property at Flats E and F (being adjoining flats) in England.(iii) The parties met in the Country T in August 2008 when the wife was working as a children’s nanny. They began a romantic relationship in April 2010, began cohabiting in November 2010, became engaged in July 2011 and married in June 2012. The fact of a 27-year age difference between the parties does not appear to have been a problem for either of them; but has perhaps contributed to a power imbalance which (in the context of their different personalities) has created difficulties in the relationship over time.(iv) Throughout their relationship they lived in England. From 2014 this was at the FMH (having rented a property a few doors away for a period of time before that).(v) The wife became pregnant with her first child in late 2011 (a mutually planned pregnancy) and in due course a marriage date in June 2012 was identified. At this time the wife had little wealth to bring to the marriage and the husband had substantial wealth. In the months leading up to the marriage the parties agreed to execute a Pre-Nuptial Agreement and, after a process of legal advice and disclosure, a document was signed on 22nd May 2012 (hereinafter referred to as ‘the PNA’). I shall discuss in more detail below the significant features of the process and the agreement; but it is common ground that it was consensually executed at the time. Under its terms, if implemented on a divorce, it would have led to an unequal division of capital assets in the husband’s favour, although objectively reasonable and commensurate with the different respective contributions to the family wealth. At the time of the marriage the wife considered the provision made in the PNA to be fair, even generous, to her. Only later (and particularly in the context of the property located in Country T, hereinafter referred to as ‘Property G’) did the PNA become a source of unhappiness and controversy.(vi) The marriage produced two children:- (a) Y (now aged 12, nearly 13), and currently at SD School in England, a private secondary school with fees of more than £9,000 per term. (b) Z (now aged 10), and currently attending PD School in England, a private primary school with fees of more than £7,500 per term. It is hoped that Z will in due course move to SD School or an equivalent fee-paying secondary school. (c) Nothing that I observed in the hearing before me has caused me to believe other than that the children are dearly loved by both their parents and that both parents have a suitable and admirable wish to promote their children’s welfare and happiness. (d) The wife is the primary carer for both children. The husband currently has some contact with the children and there are ongoing court proceedings through which he would like to expand his contact. A further hearing is listed in the summer to investigate this and, whilst decisions on this are not for me, it is reasonable for me to assume that both children will enjoy good levels of contact with their father for the foreseeable future. (e) Both children have been diagnosed as dyslexic, have traits of ADHD and Y has an autism diagnosis; but they are proceeding through mainstream education and it is not suggested their conditions will prevent normal progress through education, probably including tertiary education in due course.(vii) By 2020 the marriage was in some difficulties, perhaps exacerbated by the longer periods of proximity caused by the husband’s heart operation, retirement from work and the covid lockdown requirements. The disclosure process has identified a list made in July 2020 by the wife for her own purposes which sets out the things she, at that point, ten years into a relationship, disliked about the husband. The list is, for me, a good illustration of the reality of the situation at that time and in the period thereafter - not that the marriage was over but in fact that the wife, having become irritated by certain aspects of the husband’s character and personality, hoped she might persuade him to reform himself and thought, if he did, it would make the marriage a happier place for her. In the same spirit the parties attended some couples’ therapy sessions between September 2020 and May 2022. The talk in therapy appears to have been of reform of character and behaviour (mainly that of the husband), the renewal of wedding vows and a new start within the marriage and (with her background in Psychology) the wife was keen to try different therapeutic models to help move the marriage to what she thought would be a better place. To his credit, it is clear that at this stage the husband loved the wife, wanted the marriage to continue and did not rule out trying to reform himself in the hope of healing the difficulties in the marriage.(viii) The year 2021 produced some particular sadnesses and stresses, including the premature death of the husband’s young nephew from a brain tumour in June 2021 and the death of the husband’s mother in September 2021, at age 94. These events were, not surprisingly, a cause of distress for the husband and, for a time, the husband took prescribed anti-depressant medication, Sertraline.(ix) From September 2021 the wife asked the husband to confront the issue which had been troubling her for some years – the provisions in the 2012 PNA. The particular headline problem was her discovery, not long after the marriage, that Property G, identified in the PNA as being specifically owned by the husband, of which the wife would be entitled to a half share of its value in the event of divorce, turned out in fact to be owned (to the extent of 99% via a company in Country T called Company L) by X so that the husband only owned 1% of it. Whilst this was the headline problem, and the wife was not pleased at the husband’s disinclination to rectify the problem, the wife also became unhappy with what she perceived (rightly or wrongly) as the generally unfair and unequal nature of the PNA. I shall discuss below in some detail what happened; but it is common ground that both parties took further legal advice (from the same lawyers who had advised them in 2012) and entered into Deed of Revocation on 28th April 2022 (hereinafter ‘the DOR’) which revoked the PNA and provided for an equal division of all assets in the event of a divorce, i.e. it was significantly more generous to the wife than the 2012 agreement.(x) Not very long after 28th April 2022 (I shall discuss in more detail below the timescale), the marriage completely broke down and the parties separated. Divorce proceedings were commenced by the wife on 4th February 2023. A Conditional Order of Divorce (Decree Nisi) was ordered on 28th November 2023. A Final Order of Divorce (Decree Absolute) awaits the outcome of the financial remedies proceedings and is not, in itself, controversial.[9]The financial remedies proceedings chronology is as follows:-(i) On 10th November 2023 the wife issued Form A.(ii) A directions order (in the nature of a First Appointment order) was made by HHJ Harris on 24th March 2024.(iii) A private FDR took place with James Ewins KC as the tribunal on 18th July 2024; but unfortunately this did not produce a compromise.(iv) The parties submitted a post-pFDR direction order by consent which I approved on 20th September 2024 listing the case for trial in May 2025.(v) I dealt with a PTR on 7th April 2025.(vi) A final hearing has taken place before me on 6th, 7th, 8th and 9th May 2025.(vii) I heard oral evidence over the first two days, submissions on the third day and have written this judgment on the fourth day and am planning to hand it down by email to the parties on 12th May 2025.[10]In dealing with the applications overall I must, of course, consider the factors set out in Matrimonial Causes Act 1973, section 25, together with any relevant case law.[11]Matrimonial Causes Act 1973, section 25, reads as follows:-(1) It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.(2) As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24,24A or 24B above in relation to a party to the marriage, the court shall in particular have regard to the following matters:- (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; (h) in the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring.[12]At the heart of this case is the argument that, in carrying out a section 25 balancing exercise, the agreement made by the parties is a dominant feature of this case. On some analyses under the heading of ‘conduct’ in other analyses under the heading of ‘all the circumstances of the case’ – the distinction doesn’t greatly matter - I will need to make an assessment of how much weight I should attach to the terms of the DOR of 28th April 2022. The wife’s case is that I should attach great weight to the DOR, that I should regard it as a magnetic factor which effectively determines the case. The husband’s case is that I should attach no weight to the DOR, and that the case should be decided by reference to the PNA of 22nd May 2012, alternatively by reference to a needs-based analysis. The difference between the two approaches amounts to an argument about more than £3,500,000, which I shall discuss in detail below.[13]Accordingly, I need to remind myself of some law on the subject of ‘Agreements’. Mr Bentham and Ms Phipps have both addressed me on the law in this area and I have been referred (amongst others) to the following cases:- - Granatino v Radmacher [2010] UKSC 42; - Edgar v Edgar [1980] 1 WLR 1410; - Brack v Brack [2019] 2 FLR 234; - AH v BH [2024] EWFC 125; - MN v AN [2023] EWHC 613; - AT v BT [2023] EWHC 3531; and - SC v TC [2022] EWFC 67.[14]In relation to the general public policy of the court in financial remedies proceedings upholding agreements, the following citations are in my view relevant to my deliberations:-(i) Granatino v Radmacher [2010] UKSC 42 (Per Lord Phillips, delivering the majority judgment in the Supreme Court):- “[75] White v White [2001] 1 AC 596 and McFarlane v McFarlane [2006] 2 AC 618 establish that the overriding criterion to be applied in ancillary relief proceedings is that of fairness and identify the three strands of need, compensation and sharing that are relevant to the question of what is fair. If an ante-nuptial agreement deals with those matters in a way that the court might adopt absent such an agreement, there is no problem about giving effect to the agreement. The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair. It is an important factor to be weighed in the balance. We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements, in preference to that suggested by the Board in MacLeod v MacLeod [2010] 1AC 298: 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.” … [78] The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best. This is particularly true where the parties agreement addresses existing circumstances and not merely the contingencies of an uncertain future.”(ii) MN v AN [2023] EWHC 613 (per Moor J) “[85] Litigants must realise that it is a significant step to instruct top lawyers to prepare a PNA prior to marriage. It is highly likely they will be held to these agreements in the absence of something pretty fundamental that vitiates the agreement. These agreements are intended to give certainty. Those signing them need to know that the law in this country will provide that certainty. Litigants cannot expect to be released from the terms that they signed up to just because they do not now like what they agreed.”[15]In relation to the question of what circumstances may cause the court to impose a solution which departs from an agreement, the following citations are in my view relevant to my deliberations:-(i) Granatino v Radmacher [2010] UKSC 42 (Per Lord Phillips, delivering the majority judgment):- “[71] The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it. [72] The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way. … [81] Of the three strands identified in White v White [2001] 1 AC 596 and McFarlane v McFarlane [2006] 2 AC 618, it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned. [82] Where, however, these considerations do not apply and each party is in a position to meet his or her needs, fairness may well not require a departure from their agreement as to the regulation of their financial affairs in the circumstances that have come to pass. Thus it is in relation to the third strand, sharing, that the court will be most likely to make an order in the terms of the nuptial agreement in place of the order that it would otherwise have made.(ii) MN v AN [2023] EWHC 613 (per Moor J):- [80] I accept that the Wife was under pressure, that is not sufficient. It has to be undue pressure. I accept that he was saying that there would be no marriage without a PNA but that is commonplace and again, cannot be a vitiating factor by itself. … [85] It follows that I am quite clear that there is no vitiating factor in this case that means that this PNA should be ignored; nor is there any factor that means that I should give it less weight than would otherwise be the case.(iii) AT v BT [2023] EWHC 3531 (per Francis J):- ”I want to make it clear that I am not criticising the husband in saying that. I am not suggesting that the husband was being overbearing or acting inappropriately, I am merely reciting the simple facts of the pressure which the wife was placed under at this time. As Mr Bishop put it, “the guests had all assembled from various parts of the world, presents had been given out, the wedding was ready to go tomorrow”. What was anyone in that situation to do? Of course, this was the culmination of a process. I recognise that this was not something that was simply thrust into the wife’s hands the day before the wedding, but it seems to me that the circumstances to which I have referred are highly relevant when I think about and make a judgement about the appropriateness of holding the parties to the terms of this antenuptial contract. It is, in my judgement, wrong to treat this as a binding contract in the circumstances to which I have referred. When one looks at the numerous authorities on the subject of pre-marital agreements or at the draft legislation that was at one time being put forward in relation to prenuptial agreements in this country, there has been a thread running through the principles applicable, and that thread is about pressure, timing and independent advice. I have already referred to the pressures that I have identified and it is my judgement that those pressures break the thread that runs through those principles to which I have adverted.”[16]I now turn to my analysis of the section 25 factors against the background of the legal principles set out above.[17]I start by bearing in mind that I must give first consideration to the welfare while a minor of any child of the family who has not attained the age of eighteen. In this case both Y and Z are under 18 and so their needs are my first consideration. I will need to ensure that the order I make ensures that their needs for suitable housing when in the care of each parent are met, that each household has sufficient income to ensure they have what they need and that their education is secured.[18]In relation to the “property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future” most of the figures (in terms of computation) are not controversial and I need only make comments as follows:-(i) There are two real properties in the list. The first is the FMH, which was purchased in joint names in 2014 and was the family home from 2014 to 2022, is currently occupied by the husband and it is agreed that this will be transferred to him by my order. The second is Flats E & F. Flat E was purchased in joint names in February 2022 and Flat F (adjacent to Flat E) was purchased in joint names in September 2022. The wife currently occupies these flats, which now have an interconnecting door, and it is agreed that these will be transferred to her by my order. The values (of £3,500,000 and £2,050,000 respectively) are agreed (as per the table below) and it is common ground that there is no latent CGT liability within the properties.(ii) The Investment Portfolio (now worth £12,692,506) was transferred from the husband’s sole name to the joint names of the parties in November 2021 as part of the process which led to the DOR in May 2022. The latent CGT figure is agreed at £118,904. A dispute has arisen, after submissions were closed, as to whether an amount which the husband could have removed from the Investment Portfolio, but did not remove, should be taken out of the equation. I do not propose to do this because, as has been said on behalf of the wife, he could have removed it and then paid his outstanding legal costs (which is what the wife did). I propose to include his outstanding legal costs debt within the mathematics, which works to his advantage. If I do this and allow a disregard the money he could have taken out of the Investment Portfolio, but didn’t, that would not be fair as between the parties. I therefore propose to leave the figure in at its full amount of £12,692,506.(iii) There are six EIS shareholdings in the husband’s name. These are illiquid assets and the values in the table below are uncertain, but there is an agreement between the parties that, whatever else I order, these will all be shared equally between the parties under a Wells sharing exercise. In the circumstances, their value is not hugely important as each party will gain or lose according to the eventual performance of these shares. Accordingly, I have left in the figures originally included in the ES2.(iv) The husband owns 1% of the shares in Company L, a company which owns Property G. The other 99% of the shares are owned by the husband’s daughter X. The value of the property is agreed at €5,500,000 so the husband’s share is, in theory, worth £45,598. The husband suggests that I should discount this figure down to zero on the basis that he is unlikely ever to ask X for his 1% share. The wife suggests it should be placed on the asset schedule at full value. In view of the inaccessibility of this asset, I propose to discount it by 50% and therefore to place a figure of £22,799 into my schedule, doing my best to impose a fair and pragmatic solution on this dispute, which is a relatively small part of the overall argument.(v) The husband has five pension funds with a total CE of £930,033. Notwithstanding that he is aged 70, he has not accessed any of these pension funds for income or drawdown purposes, but I see no reason why he should not now do so. Neither party has suggested or investigated the possibility here of any pension sharing orders and, since the preference of both parties is to include them in a division of assets at their CE value, I propose to adopt this way forward.(vi) The ES2 includes some chattels, but I have decided to omit these from my schedule on the basis that the parties’ chattels should be divided in a fair way in a separate and discrete exercise.(vii) The “HW Limited final payment” owed to the husband is agreed at £11,512.(viii) After close of submissions, and not mentioned at all during the hearing (save for a passing reference to TBC), I have been sent by the wife’s legal team an email from Deloitte, the wife’s tax adviser, suggesting that she may be liable for tax on her earnings from the Investment Portfolio in the tax years ending 5th April 2022, 2023, 2024 and 2025, a total of £566,744. It appears that the wife has not filed any tax returns for these years and there may be late payment interest and/or penalties on top of this. A response from the husband’s legal team suggests that they have not yet had a chance to review this email and consider that the wife might be able to take lawful and reasonable steps to reduce or mitigate this sum. Nonetheless, in so far as this liability does exist, I take the view that the principal part of the debt needs to be taken into account as the equivalent debt from the husband’s side has been factored in. In so far as there are additional late payment interest or penalties then these should be borne solely by the wife, who should have filed her tax returns timeously. Further, in so far as this debt can be mitigated by lawful steps then the wife should be expected to do this. In view of the uncertainty of the size of this debt, and the late submission of the email, I shall not include it in my schedule; but in so far as the principal debt is established to exist then it will need to be factored into the outcome of the case and I shall specify how this is to be done below.[19]Having made these determinations I am now able to set out my assessment of the assets and debts for distribution in this case. The situation can be summarised as follows:- REALISABLE ASSETS/DEBTS20. Joint The FMH This property has an agreed value of £3,500,000 less notional costs of sale at 3% = £3,395,000 3,395,000 Flats E & F This property has an agreed value of £2,050,000 less notional costs of sale at 3% = £1,988,500 1,988,500 Nat West account (number ….XXXX) 9,952 Investment Portfolio The portfolio has a value of £12,692,506 but is subject to latent CGT of £118,904 = £12,573,602 12,573,602 TOTAL 17,967,05421. Wife Bank accounts in W’s sole name 31,695 Investments & Policies in W’s sole name 0 Monies held on account by Solicitors 6,604 Amex Credit card debt -8,681 Outstanding legal costs (FR proceedings) W has incurred legal costs of £459,135, all of which has been paid 0 TOTAL 29,61822. Husband Bank accounts in H’s sole name 357,409 Investments & Policies in H’s sole name 256,872 Monies due from HW Limited 11,512 Credit card debts -3,555 Outstanding tax liability (due July 2025) -36,641 Debt to solicitors for costs of children proceedings -4,853 Outstanding legal costs (FR proceedings) W has incurred legal costs of £337,797, of which £221,040 has been paid = £116,757 -116,757 TOTAL 463,987 PENSIONS & ILLIQUID ASSETS23. Wife Teachers Pension CE W says that she did not reach the minimum of service period to qualify for a pension and this has not been contradicted in the evidence 0 TOTAL 024. Husband Shares in M Limited (EIS) 409,091 Shares in N Limited (EIS) 30,000 1% share in Company L This company owns Property G worth €5,500,000 less 3% notional sale costs = €5,335,000 = £4,559,829, of which X owns 99% and H owns 1% = £45,598 22,799 Shares in O Limited (EIS) 100,000 Shares in P Limited (EIS) 0 Shares in Q Limited (EIS) 0 Shares in RST (EIS) 0 Aegon Occupational Pension CE 68,963 Aegon Pension CE 162,969 The People’s Pension CE 6,725 RR Occupational Pension CE 424,174 FX Occupational Pension CE 267,202 TOTAL 1,491,923

REALISABLE ASSETS/DEBTS

[20]Accordingly, the total asset base here (on the figures in my schedule) is £17,967,054 + £29,618 + £463,987 + £1,491,923 = £19,952,582.[21]The wife argues that the division (per the DOR) should be exactly equal, so that she would be left with assets worth £9,976,291 (with half the wife’s late emerged tax liability to be deducted from this). The husband suggests that the division should be very different, so that the wife should receive only £6,384,000. The husband’s argument relies on the proposition that the DOR should be disregarded and that the PNA should govern the division – further or alternatively that this amount would represent a fair distribution based on a reasonable needs analysis.[22]Given the dominance of this argument in the present case, I shall next turn to the issue of Agreements.

PENSIONS & ILLIQUID ASSETS

[23]As I have said, the parties entered into the PNA on 22nd May 2012. It is not necessary for my purposes to analyse in depth the circumstances of its creation, save to note the following:-(i) Both parties had full legal advice from experienced family lawyers before signing up to the PNA. The wife had legal advice from Richard Hogwood of Stewarts, Solicitors, and the husband had legal advice from Victoria Francis, then of Speechly Bircham, Solicitors. Both Solicitors gave express certifications that they had respectively advised the parties on the contents, suitability and fairness of the proposed PNA. There is no very substantial suggestion that the process was unduly rushed or unduly pressured (though the wife was pregnant at the time and had that pressure) and the PNA seems to have had a gestation period of several months leading up to May 2012.(ii) The process involved a suitably full disclosure of the parties’ respective financial position in 2012 and the PNA specifically recorded in an annex what had been disclosed. What was disclosed, which illustrates that the husband already had substantial wealth and the wife very little wealth, can be summarised and tabulated as follows:- Husband Investments, shares and cash in the UK £7,600,000 to £7,800,000 Shares in HW Limited $3,033,000 less $460,000 Property G €5,000,000 Property in Country U €2,000,000 Cash in Country U €320,000 Income from HW Limited £180,000 pag Income from investment portfolio £280,000 pag UK Pensions - estimated future income £10,000 pag Country U Pensions - estimated future income £250,000 pag Likely renovation costs Property G €500,000 Likely renovation costs of property in Country U €25,000 Tax liability in Country U Unquantified Wife Cash at bank in UK £15,000 Chattels £4,500 Income from employment £28,000 pag(iii) The PNA recorded that all the above property should be regarded (with some exceptions, by far the most significant being Property G) as ‘separate property’ which would be excluded from any capital claim or division on a later divorce. ‘Marital property’, which consisted of Property G and (essentially) anything accruing from endeavour during the marriage, would be divided equally on a later divorce. If the wife’s half share of the marital property did not meet her housing needs on a divorce then the husband would be obliged to make up the ‘shortfall’, which was to be ‘generously assessed’. The PNA did not preclude the wife bringing a spousal or child periodical payments claim based on need. Thus, the wife accrued an immediate right to half the value of Property G (which would have provided some €2,500,000 for her in 2012) – and this could be supplemented if it did not meet her housing need at the time - plus half of any subsequent marital accrual and also a potential maintenance claim. At the time the wife was advised (and believed) that this was reasonable, indeed possibly generous, provision, giving her significantly more than she might have received if the marriage had broken down quickly without the PNA.(iv) In the light of the terms of this agreement it would have been reasonable for the wife to believe at the time of her marriage (and she did believe) that the husband was the sole owner of Property G and that the PNA gave the wife the right to claim a half share of its value in the event of a divorce and so it was reasonable for her to regard Property G as, in effect, half belonging to her. Although she had been aware of the existence of Company L, she had been assured that for all practical purposes the husband was the owner and would in due course arrange for the formal title to be transferred into his sole name.(v) Not long after the marriage, she puts it about June 2012, the wife became aware that, in fact, X owned 99% of Company L and in due course, over a period of time, the wife became aware that the assurances that she thought she had been given were not going to be honoured and that the husband was not planning to transfer Property G to his sole name but was planning to recognise X’s 99% ownership. This became a “running sore” in the marriage and it is easy to see why this was the case. Although Ms Phipps has argued that the wife would still strictly have been entitled to half the ‘value’ of Property G even if it was effectively owned by X, that does not entirely eliminate the problem. The wife felt she had been misled, she was uncertain how a court might interpret the position and felt insecure as a result and she was also uncomfortable with how much money the husband was spending on the renovation of Property G which it was now clear he did not own. I do not need to decide whether the husband deliberately misled the wife about this in 2012 or whether it was innocent mistake by him (as he says), but either way he accepts that the disclosure in 2012 was significantly inaccurate and this has left an uncomfortable feeling in the air which unfortunately undermined the trust and confidence of the wife in the husband and seems to have adversely affected the marriage. These problems remained at large up to the events of 2021 and 2022.(vi) Ms Phipps has calculated that, ignoring the DOR, the implementation of the PNA on today’s figures would produce an entitlement for the wife of assets worth £6,384,000 and that is what the husband offers. This figure comes broadly from taking one half of the present value of Property G and adding one half of the marital acquest from 2012 to the present day. Mr Bentham has not specifically challenged the mathematics of this calculation and I am prepared to proceed on the assumption that it is broadly correct.[24]I now turn to the DOR of 28th April 2022 and make the following comments:-(i) The express terms of the DOR are very clear and the important provisions are the following:- “E With a view to assisting with this process, and in the light of their wish that henceforth they each continue in the Marriage as equal partners and with full transparency, [the husband] and [the wife] wish to revoke the Pre-Nuptial Agreement and instead to proceed in accordance herewith. F [The husband] has received English family law advice from Victoria Francis of Newton Kearns. [The husband] has received this advice prior to the execution of this Agreement and his legal adviser has signed the endorsement to this Agreement confirming the same. G [The wife] has received English family law advice from Richard Hogwood of Stewarts. [The wife] has received this advice prior to the execution of this Agreement and her legal adviser has signed the endorsement to this Agreement confirming the same. H Each party fully and completely understands each provision of this Agreement both as to the subject matter and legal effect and are fully aware of their respective legal rights that each of them may be releasing pursuant to the terms of this Agreement. … 2 To the extent not already done and save where it would not be reasonable to do so (perhaps for reason of tax or other costs), each party shall as soon as reasonably practicable hereafter arrange for all their assets and interests to be transferred into joint names in equal shares with the other. 3. The Pre-Nuptial Agreement is hereby revoked in its entirety. 4. Reflective of the equal nature of their relationship, it shall henceforth be deemed that all assets and interests (but not liabilities) of each party both now and accrued and acquired hereafter (until the dissolution of their marriage) by or from whatever sources or means shall be considered marital or matrimonial property susceptible to equal sharing upon a dissolution (save only where needs dictate otherwise). A broad summary of the assets and interests of the parties as at the date hereof is set out at Appendix A hereto.” henceforth they each continue in the Marriage as equal partners and with full(ii) On the face of the DOR, if the parties were to divorce after 28th April 2022 (which they are now doing) then the court would pay no regard to the PNA of 2012 and would instead divide all the parties’ assets equally, however and whenever they accrued. Mr Bentham powerfully and persuasively argues that my task is in fact simple, as the DOR intended it to be. I should simply add up the total value of assets and divide by two. The figures are as set out above: £19,952,582 divided by 2 = £9,976,291 (less the later emerging tax figure). The wife should be provided with assets to this value. Mr Bentham has suggested that there could not really be any clearer illustration of the court’s policy to uphold agreements set out in Granatino v Radmacher [2010] UKSC 42 and MN v AN [2023] EWHC 613 than the present case.(iii) Ms Phipps, however, has sought to persuade me that this would not be the proper or fair outcome and I need to consider in some detail the arguments she has raised.(iv) Ms Phipps’ first line of attack was that that the DOR was procured by a deliberate and cynical manipulation of the situation by the wife amounting (in legal terms) to misrepresentation vitiating the DOR. It is suggested that the wife knew from the outset that once she had achieved the execution of the DOR she had pre-determined that she would terminate the marriage and gain monetarily from the better terms produced by the DOR over those included in the PNA. It is said that she had never had any intention to “continue with the marriage” and just pretended to do so in the months leading up to the execution of the DOR and that she cynically attended couples therapy sessions as part of the pretence. The husband has said that the DOR was “the culmination of a carefully orchestrated plan” and that the wife’s “behaviour began to change almost immediately after the ink had dried on the Deed…as if a switch had been flicked”. I read and carefully listened to what the wife said about these attacks on her and read large numbers of contemporaneous messages throwing light on the correctness or incorrectness of these allegations. The wife was absolutely clear that she genuinely hoped the marriage would work up to and beyond the execution of the DOR and, for me, she was absolutely credible in what she said about this and I believed her. This conclusion is entirely consistent with a proper reading of all the contemporaneous text messages and emails I have seen. I am satisfied that she did have a genuine hope that the couples counselling would work. I am satisfied that she did have a genuine hope that the underlining of equality introduced by the DOR would improve the emotional transactions between her and the husband and give the marriage a good chance of survival. I am satisfied that in each case she was disappointed by the events that occurred after 28th April 2022 as this is not what she hoped for and intended. A very detailed, sustained and skilful cross-examination of the husband by Mr Bentham really, for me, exposed the paucity of evidence which supported the husband’s proposition in this respect. It clearly established that his assertion that the “switch had been flicked” with the signing of the DOR on 28th April 2022 was unsustainable – a close analysis showed no change in the nature of communications before and after 28th April 2022.It also exposed the incorrectness of the husband’s suggestion in his Form E and in later assertions than the parties had never lived together after March 2022. Having heard all the evidence, I am quite satisfied that they were living together, sharing a bed and living arrangements together and functioning as a couple into July 2022 and indeed probably into August 2022 when they went on a long overseas holiday together to Bali between 7th and 30th August 2022. In my view, although there were difficulties in the relationship in June and July 2022, the tentative decision to separate was not taken until about 9th September 2022 and even then there was a lack of finality about it. On a close analysis the fact that the wife and children moved into Flat E on 7th July 2022 was more to do with the planned renovation works at the FMH than the state of the relationship. I wholly reject the husband’s first line of attack on the DOR and deprecate the way he has attempted to cherry pick the evidence to support a case which he knew or ought to have known was unsustainable.(v) Ms Phipps’ second line of attack on the DOR was that it was procured by undue pressure. Ms Phipps suggested that what happened was comparable with the facts in SC v TC [2022] EWFC 67, where I declined to uphold an agreement entered into at a time when a marriage was in difficulties. But I accept Mr Bentham’s submission that the facts of that case (where a husband suffering from Parkinson’s Disease which caused him to be vulnerable signed an agreement reducing his potential claims to below his needs) are a long way away from the present case where the husband’s needs are not in issue and he has no comparable vulnerability. In the present case the husband was receiving advice from Victoria Francis (now of Newton Kearns, Solicitors) from December 2021 to April 2022. The evidence clearly established that he had been properly advised about the DOR by Victoria Francis and also one of his financial advisers (who both appear to have warned him that what he was doing was potentially disadvantageous), that he had thought carefully about the DOR, that he knew what he was potentially giving away by signing the DOR if there was a divorce (and he knew a divorce was still a possibility) and that he nonetheless made the choice to sign the DOR. He was a mature and experienced businessman, not a naïve ingenue. Although he had suffered two sad bereavements in June and September 2021, it has not been, and could not seriously be, argued that these had the effect of undermining his free will and choice in this matter. Neither the autism diagnosis of 2023 nor the prescribing of Sertraline in 2021 have been seriously suggested as a cause of an undermining of his cognitive functioning or his ability to make a choice. Ms Phipps has said to me that the husband had no choice but to sign the DOR if he wanted to continue with his marriage; but in my view Mr Bentham was correct to retort that a difficult choice is still a choice and that, in any event, there has been no evidence here of the wife ever giving an ultimatum to this effect. By analogy, the prospective wife of a rich man required to sign a pre-nuptial agreement as a pre-condition to a marriage is always under pressure, but as Moor J said in MN v AN [2023] EWHC 613:
“that is commonplace and again, cannot be a vitiating factor by itself.”
Something rather more is required to amount to undue pressure and, for me, there is nothing in the present case which takes the case anyway near that threshold. (vi) Ms Phipps’ third line of attack was based on the assertion that I should conclude that, on a general analysis of fairness, the fact that the marriage came to an end so quickly after the DOR was signed (on my analysis the gap was from April to September 2022) and that the outcome was so substantially different as between what a court would have done with and without the execution of the DOR that I should exercise my discretion to disregard the DOR completely and fall back on the position as it would have been prior to 28th April 2022. Her submission is that the existence of an agreement is only part of the section 25 analysis. In this respect she relies on the words of Peel J in AH v BH [2024] EWFC 125 when he said:
“There is no doubt that the pre-marital agreement is one of the relevant criteria, but it is not the only one. The terms of a pre-marital agreement must be seen in the context of the section 25 factors. The extent of the weight to be attributed to a pre-marital agreement will vary from case to case”
. In my view Ms Phipps’ submission takes Peel J’s observation very much out of context and rather sidesteps the fact that he goes on to note the important status of the Granatino v Radmacher [2010] UKSC 42 Supreme Court decision. I agree with Mr Bentham’s response to this which was to say that a decision along the lines suggested by Ms Phipps would be driving a coach and horses through the ratio of the Supreme Court’s decision. It would be to ignore the important comments about respect for “individual autonomy” and would be a very direct example of the “paternalistic and patronising” stance that “the court knows best” which has been deprecated by the Supreme Court. Whilst it was unfortunate for the husband in the present case that he gave away some entitlements in return for the hope that his marriage would have a better chance of surviving, the fact that his marriage did not survive very long does not change the fact that he exercised his individual autonomy to take that chance. He could simply have refused to revoke the PNA or to revoke it on condition, for example, that the revocation would only be effective if the marriage continued for a set period of time – 5, years, 10 years or whatever; but he never made those choices and readily signed the DOR, notwithstanding its obvious disadvantageous nature to him. It is very difficult to see how the husband can escape from the consequences of his choice, particularly where there is no suggestion of needs not being met as a consequence. The reported judgments where a valid agreement is over-ruled are all (to the best of my knowledge) situations where the needs of one party are not properly respected and met and this does not arise here. This is, in my view, a clear example of a situation where the words of Moor J in MN v AN [2023] EWHC 613 apply:
“Litigants must realise that it is a significant step to instruct top lawyers to prepare a PNA prior to marriage. It is highly likely they will be held to these agreements in the absence of something pretty fundamental that vitiates the agreement. These agreements are intended to give certainty. Those signing them need to know that the law in this country will provide that certainty. Litigants cannot expect to be released from the terms that they signed up to just because they do not now like what they agreed.”
This applies just as much to agreements entered into in the course of or towards the end of a marriage. (vii) It follows from the above that I agree with Mr Bentham that the existence of the DOR is a magnetic factor in this case in relation to the division of capital.

henceforth they each continue in the Marriage as equal partners and with full

[25]In relation to “the income, earning capacity…which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire” the following picture emerged:-(i) The wife, at age 43 and with her qualifications, probably does have a reasonable earning capacity for the period up to her state pension age. She is currently working on a part-time basis at a nursery; but there is no reason to believe that she could not (if she so decided) return in due course to full time teaching, earning £40,000 pag or perhaps even a little more.(ii) The wife also receives child benefit and some Disability Living Allowance. Query whether these will survive means testing after my order is implemented.(iii) The husband, at age 70, should not reasonably be expected to take up remunerative employment again and is in receipt of state pension.(iv) Both parties will no doubt wish to deploy the surplus capital they receive as a result of my order in a way which (after their respective housing needs are met) produces an investment income for them respectively at a level which balances their income need and a sensible investment risk. In particular, there seems little sense in the husband not making use of the pension funds he has accrued in his name. There has been little analysis in the hearing before me as to what such incomes might be in the future; but I would be surprised if the husband’s income ended up significantly exceeding the CMS top-up level income of £156,000 pag.[26]In view of my conclusions above about the DOR, there is little need for me to analyse the other section 25 factors in any detail; but suffice it to say that I have in mind the statutory requirement to consider the “financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future”, the standard of living that the parties jointly enjoyed during the marriage, the ages of the parties, the duration of the marriage, the respective contributions of the parties, the conduct of the parties and disability. I have nothing more to add on these subjects.[27]In terms of the capital outcome, therefore, it follows from what I have said above that a methodology needs to be found which produces for the wife assets worth £9,976,291 (with half the principal sum from the wife’s late emerged tax liability to be deducted on the basis that the husband will bear the other half ). I assume that the parties will be able to produce a workable solution relatively quickly now that I have delivered judgment and that this will incorporate:-(i) A transfer of the FMH to the husband and Flats E and F to the wife.(ii) A Wells sharing arrangement for the six EIS company shareholdings.(iii) A transfer from the joint assets (mainly the Investment Portfolio) which equalises the assets accordingly.(iv) A discrete division of chattels.(v) A methodology for sharing the actual amount of the principal sum from the wife’s late emerged tax liability.[28]Given the amount of capital here, this is plainly a case for a clean break, i.e. the dismissal of spousal periodical payments in each direction. Nobody has argued otherwise.[29]There remains the issue of child periodical payments. The parties have been unable to reach any agreement on this subject.[30]Although at the outset of the case the parties agreed to allow me to make a nominal order so as to give me the jurisdiction to vary it, with one eye on the mechanism used in V v V [2001] 2 FLR 799, thus conferring a power that I otherwise would not have had in the absence of a maximum income CMS assessment.[31]The husband’s final position on child periodical payments (on the equal capital division scenario, which I have now approved) is that I should not make any order for basic maintenance, but that I should leave the issue of child support to the CMS, save that he is willing to submit to an order for the payment of half of all future school fees (on the basis that the wife pays the other half) and offers the following undertaking:- “The respondent will make the following payments direct to the relevant providers forthwith upon receipt of each invoice for:-(i) Tutoring for each child with such tutors as the applicant and respondent shall agree at up to £400pcm per child;(ii) Art classes for [Y] up to £480pcm;(iii) Art therapy for [X] up to £480pcm;(iv) SEN therapies or SEN support as recommended by each child’s school or [their private treatment clinic];(v) Health insurance for the children with BUPA or a similar provider at a similar level to the current level of cover (currently “Comprehensive £500, Full Cancer Cover, Facility access - Extended Choice with Central London, £150 Excess”); and(vi) Any additional costs as agreed in writing between the parties. The financial caps provided for in sub-paragraphs (i), (ii) and (iii) above shall be increased automatically each year on the anniversary of the date of this order and at yearly intervals thereafter. The change in payments shall be the percentage change, if any, between the consumer prices index for the month 15 months before the variation date and the consumer prices index for the month 3 months before the variation date. The payments set out above shall continue until the earlier of (a) each child respectively reaching the age of 18 or (b) the child no longer attending at or needing the relevant provision or (c) as otherwise agreed between the parties.” (i) Tutoring for each child with such tutors as the applicant and respondent shall agree at up to £400pcm per child; (ii) Art classes for [Y] up to £480pcm; (iii) Art therapy for [X] up to £480pcm; (iv) SEN therapies or SEN support as recommended by each child’s school or [their private treatment clinic]; (v) Health insurance for the children with BUPA or a similar provider at a similar level to the current level of cover (currently “Comprehensive £500, Full Cancer Cover, Facility access - Extended Choice with Central London, £150 Excess”); and (vi) Any additional costs as agreed in writing between the parties.[32]The wife’s view is that I should order the husband to pay £2,500 per month in child periodical payments (£1,250 per child per month) and pay all of the school fees (a liability currently running at c £50,000 per year, which will no doubt rise as the children become older). The wife’s justification for this is that the cost of looking after the children (including school fees) runs at £135,000 per year so that on this basis the parties’ will be paying roughly half each.[33]My preference on the child maintenance issue is to adopt the husband’s proposed solution in its entirety. The proper mechanism for deciding child support is in my view the CMS in this case and I consider that the husband’s solution is the fairest in all the circumstances. If this leaves the wife with a shortfall on what she thinks she needs to spend on the children (and I am not convinced that it will) then the substantial award made above, which to some extent amounts to a windfall which she would not have received if the husband hadn’t signed the DOR, should give her ample funds from which to pay it.[34]I received submissions from Counsel on costs issues on the basis of alternative outcomes, including the one I have reached above. I therefore propose to set out my conclusions on costs. I bear in mind the general rule under FPR 2010 Rule 28.3 that there should be no order as to costs; but also that the general rule can be departed from for a particular reason, including “whether it was reasonable for a party to raise, pursue or contest a particular allegation or issue” and the “manner” in which it was pursued. I also remind myself of FPR 2010 PD 28A, paragraph 4.4 and the words of Mostyn J in OG v AG [2020] EWFC 52:
“if, once the financial landscape is clear, you do not openly negotiate reasonably, then you will suffer a penalty in costs”
. Whilst I am of course not privy to the without prejudice negotiations, and cannot be under Part 28, but I can observe that both of the husband’s open offers (4th November 2024 and 28th April 2025) and all of his witness statements major on the proposition that the DOR should be disregarded and the case decided by reference to the PNA. I have determined against that argument; but I would go further and say that the argument was never a strong one and that it was unreasonable for the husband to pursue it, in particular once the factual matrix was fairly clear after the wife presented her case in her statements and the exhibits to them. In my view this argument should not have been pursued to trial. I also agree with Mr Bentham that it was very unfortunate that the husband chose to present his case on the basis that the wife had been engaged in deliberate and, although he didn’t use the word, fraudulent misrepresentation for an extended period between September 2021 and April 2022 to procure the DOR. This caused not only understandable distress to the wife, but also necessitated a high level of work to rebut the allegation, which she did in the end very powerfully. I therefore propose to make a costs order on a summary assessment basis to reflect these thoughts and will order the husband to make a contribution to the wife’s costs of £100,000. This sum can be added to the sum the wife will otherwise receive to equalise the assets.[35]This is my decision and I invite Counsel to produce a draft order which matches these conclusions. I will be handing down this judgment on the morning of 12th May 2025 and the appeal period will run for 21 days from that date. As discussed at the end of the hearing, I propose to publish this judgment on The National Archives and invite Counsel to agree an anonymised and redacted version of this judgment for publication to prevent the identification of the parties by any reader; but allowing the reader to understand the decision and the reasons for it. HHJ Edward Hess Central Family Court 9th May 2025