HA v EN [2025] EWHC 2436 (Fam)

[2025] EWHC 2436 (Fam)

Case No 1652-1943-4230-6305;

1653-9948-1184-8896

IN THE HIGH COURT OF JUSTICE

FAMILY DIVISION

Venue Royal Courts of Justice

Date Wednesday, 30 April 2025

Strand

London WC2A 2LL

Before

The Hon. RICHARD TODD KC

(Sitting as a Deputy High Court Judge)

Between

HAApplicant

ENRespondent

MR N YATES KC and MR E BENSON (instructed by Vardags) appeared for Applicant

MR D BRAZIL (instructed on a Direct Access basis) appeared for Respondent

JUDGMENT

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This judgment was delivered in private. The judge has given leave for this version of the judgment to be published on condition that (irrespective of what is contained in the judgment) in any published version of the judgment the anonymity of the children and members of their family must be strictly preserved. All persons, including representatives of the media, must ensure that this condition is strictly complied with. Failure to do so will be a contempt of court.

[1]THE HONOURABLE DEPUTY HIGH COURT JUDGE RICHARD TODD KC: This is a hearing to determine outstanding issues which arise from the parties' ongoing applications for financial remedy.

[2]I am going to direct that this case should be anonymised for the same reasons of commercial sensitivity that I set out in the earlier report of this case, HA v EN

[2025] EWHC 48 (Fam)

. Similarly, because of the background having been fully stated in that earlier report of this case, I do not propose to set out the background at any greater length here.

[3]A final hearing had been listed for this matter to commence on 22 April 2025 with a time estimate of 9 days. The parties required more time in order to continue their negotiations with a view to achieving a compromise. I am pleased to report that with the assistance of expert legal representation on both sides, they have very largely been able to achieve a compromise. As is sometimes the case, there remain various issues between them which are subject to this court's ability to resolve because on 21 April 2025 the parties were agreed that the negotiations had reached the stage of a Xydhias agreement.

[4]A Xydhias agreement is named after the well known case of Xydhias v Xydhias

[1999] 2 All ER 386

. I will return to a discussion of the law in respect of this later in this judgment.

[5]The court gave considerable time to the parties to enable the negotiations to take place but, as already indicated, those negotiations were successful in agreeing the vast majority of issues.

[6]I have seen a draft consent order which sets out the disagreements and agreements of the parties. This morning I was sent a further note by Mr Brazil on behalf of the husband in which he referred to additional matters being in dispute. They arise from the husband's concern as to the enormity of the liabilities that might fall on him as a consequence of inter alia the size of the legal costs incurred on the wife's behalf.

[7]Continuing with the issues today, they really divide into two parts. There are those which arise from the agreement itself and there are those that arise from the issues that have been raised by Mr Brazil.

[8]I will set out the contested points shortly, but by way of background to the agreement itself, the distribution of the vast majority of the parties' wealth has been resolved by agreement. The wealth itself consists primarily of the family home which I understand is being marketed for £19.95 million. The parties have received an offer of £15 million which they have both agreed to reject. The husband's particular concern is that should they achieve a good deal less than the asking price of £19.95 million, then his share is progressively reduced. It is plain that if the final price was to be as low as near the £15 million mark, then that would result in both parties receiving nothing after the schedule of liabilities, which has been provided by Mr Yates KC on behalf of the wife.

[9]The other main group of assets is the husband's investments of which the vast majority are illiquid. These have been valued by the well-known expert Mr Tom Rodwell and he has valued them at £10.7 million. The wife cannot currently be paid out her capital claims because these assets need to be liquidated.

[10]By way of further background there was a pre-nuptial agreement. It has been the foundation of the parties' discussions. The difficulty being, as was set out in the earlier judgment in this case, that there is simply insufficient assets to meet the Wife’s entitlement under that agreement. However that agreement anticipated that and provided for a “stop-loss” clause. This operated so that if the Husband had insufficient resources then there would be a maximum claim by the Wife. The Wife has accepted that her claims are limited by this. As such this has been reflected in the draft consent order which has been put before me.

[11]Even whenever the illiquid assets are realised, the vast majority of the capital is still going to have to be deployed in meeting the parties' respective needs. This case has moved from being an obvious sharing case on the original assets as alleged by the wife, to much closer to a needs case as now it is.

[12]It is said on behalf of the wife that the husband's needs are less pressing than those of hers because she is the primary carer. I do not accept this. They both have needs and there is no hierarchy between them as to needs; first consideration can still be given to the welfare of any children without prioritising one adult’s needs over the other’s. It may well be that for quantum, that one party's needs is higher than the other's but they are to be treated with equity and equality when they come before this court, when it comes to their question of needs.

[13]I note that there is a dispute between the parties as to the extent to which the husband is seeing the children. He says that is currently restricted because of the inappropriateness of his one-bedroom flat for there to be any staying contact. I need not explore that any further because, as already indicated, it seems to me that there is a high similarity between the parties in respect of their needs and indeed the court order does seem to achieve this.

[14]The settlement is achieved in the first instance, by the setting up a family fund. This deals not just with the longer-term but also the interim expenditure whilst they await liquidity events such as the sale of the matrimonial home and also the realisation of the liquid assets. It is agreed that all of the liquid assets, including the unusually liquid pension that the husband has, his income and the various other assets are to be placed into that family fund.

[15]It is also agreed that one parking space separate from the family home will now be sold, if possible, in order to achieve some more liquidity. Mr Brazil has alerted me to the difficulties with selling that, but it makes no difference to the actual terms which the parties have agreed – it will either sell and the proceeds join the fund or it will not.

[16]The family fund will meet both parties' ongoing expenditure until the later of either the family home being sold or the wife receiving £3.5 million in capital. £3.5 million is the figure which the parties agree she is going to need to rehouse herself and the children. After that is liquidated, which is referred to within the order as the "trigger day," the family fund will be liquidated and the remaining funds are divided equally less certain agreed payments which are not to be taken into account. There is then a rebalancing exercise whereby the party who has spent less is reimbursed by the other. There is a small dispute, which I will resolve, as to when that occurs.

[17]The headlines of the agreement can be summarised as this:(i) The family home should be sold immediately;

(ii) The husband's illiquid assets should also be realised and a series of lump sums paid on realisation;

(iii) The net receipts of the family home and the husband's illiquid assets shall be paid out as to: (a) 70:30 in the wife's favour until she receives £3.5 million; (b) To clear the husband's debt to His Majesty's Revenue and Customs (if it has not already been paid); (c) After the Wife has reached £3.5m, there will be a 30:70 divide in the husband's favour until both parties have received £5 million. (d) After they have both received £5 million the fund shall be divided equally. (e) There will in any event be a cap on the funds received by the wife of £24 million. That is reflective of the pre-nuptial agreement’s stop-loss clause. That figure will be varied upwards according to the retail price index. (f) The husband will take reasonable efforts to secure a debenture over the Human Learning Ltd shares as security for capital sums owed to the wife.

[18]Once the wife has received £3.5 million and the FMH has been sold, the family fund is liquidated, as already indicated, and the funds divided as set out above.

[19]The husband is going to pay the school fees, university fees and related living costs of the children at university. He has also proposed to pay child maintenance of £25,000 per annum per child and then additional costs for the children, including a holiday top up allowance of up to £20,000 per annum per child. (This is one of those items that the husband has said this morning is going to prove to be too oppressive for him in the changed circumstances of either the increased calls on the family fund or alternatively should the property sell for a great deal less.) On the basis of this, it is proposed that the capital claim should be dismissed and there should be a nominal maintenance order until the wife receives £10.5 million; that figure again being retail price indexed linked. There will, in any event, be a full life and death clean break of the husband's claims.

[20]The basis of the order is no order as to costs, save that it is agreed, and this needs to be reflected in the order, that the costs of Harbottle & Lewis are to be subject to a party and own client assessment in order to see whether that figure can be reduced. That is very much at the behest of the husband. The husband quite rightly agrees that he should incur, in the first instance, the costs of obtaining that assessment. If he were to be successful in that assessment, he should be able to recoup those costs ahead of any other division between the parties and recoup those from the reduction that there would be in the costs that would otherwise be payable in respect of Harbottle & Lewis. There is then the conventional “liberty to apply” in the order in terms of implementation and timing.

[21]The two interim charging orders made over the FMH to secure the sums due to the parties are to be made final and I do make that order.

The Law

[22]First, I am going to set out the law which arises from the case of Xydhias and upon which this Court’s jurisdiction today is founded. The case of Xydhias emphasises that this court is not just a rubber-stamp approving the agreement between the parties. This court has to exercise its discretion under section 25 of the Matrimonial Causes Act 1973 ("the 1973 Act"). In approving the parties' agreement and resolving the other issues of today, I have taken into account all of the clauses within that section of the 1973 Act. I have scrutinised the agreement and I am persuaded that the agreement achieves fairness in this case.

[23]The Xydhias jurisprudence exists to deal with where there are either small disputes as to the exact terms of an agreement reached or its implementation (and whether they should be sanctioned by the Court) and also whether an agreement has been reached at all. I mentioned “whether an agreement has been reached at all”, because if it were the case that I find the parties had not reached a level of accord which constitutes a Xydhias agreement but in the process I had seen some without prejudice correspondence, I would not be able to continue with this matter. The matter would have to be sent to another Judge who had not seen that material. Both parties invites me to accept that they have reached a Xydhias level of accord and that the small issues between them should be resolved summarily by me.

[24]The recent judgment of Moor J in Pierburg v Pierburg (No.2)

[2022] EWHC 2701

sets out the current orthodoxy surrounding Xydhias. He said at paragraph 43:

"Xydhias is authority for the proposition that, in relation to agreements reached in the family law context, ordinary contractual principles do not apply. As the final award was always fixed by the court, the purpose of negotiations was to reduce the length and expense of the legal process. The court has a discretion in determining whether an accord has been reached. Moreover, even where an overall settlement had been agreed, there might well be issues remaining, for example as to the drafting or exact terms of the order, that the court would be able to determine without undermining the overall agreement."

[25]This goes back to the original decision of Xydhias and in particular the judgment of Thorpe LJ who held that:

"My cardinal conclusion is that ordinary contractual principles do not determine the issues in this appeal. This is because of the fundamental distinction that an agreement for the compromise of an ancillary relief application does not give rise to a contract enforceable in law. The parties seeking to uphold a concluded agreement for the compromise of such an application cannot sue for specific performance. The way of rendering the bargain enforceable, whether to ensure that the applicant obtains the agreed transfers and payments or whether to protect the respondent from future claims, is to convert the concluded agreement into an order of the court. The decision of the Privy Council in de Lasala v de Lasala [1980] AC 456 demonstrated that thereafter the rights and obligations of the parties are determined by the order and not by any agreement which preceded it."

Later on in his judgment he says:

"In consequence, it is clear that the award to an applicant for ancillary relief is always fixed by the court. The payer's liability cannot be ultimately fixed by compromise as can be done in the settlement of claims in other divisions. Therefore the purpose of negotiation is not to finally determine the liability (that can only be done by the court) but to reduce the length and expense of the process by which the court carries out its function. If there is a dispute as to whether the negotiations led to an accord that the process should be abbreviated, the court has a discretion in determining whether an accord was reached. In exercising that discretion the court should be astute to discern the antics of a litigant who, having consistently pressed for abbreviation, is seeking to resile and to justify his shift by reliance on some point of detail that was open for determination by the court at its abbreviated hearing. If the court concludes that the parties agreed to settle on terms then it may have to consider whether the terms were vitiated by a factor such as material non-disclosure or tainted by a factor within the parameters set in Edgar v Edgar. Finally in every case the court must exercise its independent discretionary review, applying the section 25 criteria to the circumstances of the case and to the terms of the accord. This approach particularly applies to accords intending to obviate delivery of briefs for trial. Different considerations may apply to agreements not negotiated in the shadow of an impended fixture."

[26]Mr Yates KC suggests that this is a case of the husband seeking to resile from an agreement and to justify his shift by reliance on some point which was open for him to raise within the course of the negotiations.

[27]Before I return to the arguments which have been put before the court, it is helpful to note that the decision of Xydhias must also be considered in the light of the case of Soulsbury v Soulsbury

[2007] EWCA Civ 969

. In that case, Longmore LJ questioned whether Thorpe LJ was correct in saying that the passing of consideration did not apply in respect of these agreements. The factual matrix of the Soulsbury case was that there had been a consent order. Pursuant to that order, the husband had to pay periodical payments to the wife. They subsequently agreed that if the wife were to waive her entitlement to periodical payments, the husband would leave her a lump sum in his will. Although the husband changed his will in consequence, he subsequently remarried which had the effect of revoking his will. The question then was whether or not the original agreement was of no validity; it being without consideration on a Xydhias interpretation.

[28]The two issues for the Court of Appeal were(a) whether this was a contract that purported to oust the jurisdiction of the court and was therefore invalid and

(b) the application of the principles enunciated in Xydhias itself. The first observations of Longmore LJ in that case were compelling. He held at paragraph 49:

"This is a classic unilateral contract of Carlill v Carbolic Smoke Ball [1893] 1 QB 256 or the "walk to York" kind. Once a promisee acts on the promise by inhaling the smoke ball, by starting the walk to York or (as here) by not suing for the maintenance to which she was entitled, the promisor cannot revoke or withdraw his offer. But there is no obligation on the promisee to continue to inhale, to walk the whole way to York or to refrain from suing. It is just that is she inhales no more, gives up the walk to York or does sue for her maintenance, she is not entitled to claim the promised sum."

[29]This kind of unilateral contract is quite different from an agreement for the compromise of the ancillary relief application to which Thorpe LJ was referring to as being unenforceable in law in Xydhias v Xydhias. In Soulsbury there was already the existing obligation (because of the Court order) whereas in a Xydhias situation the Court is considering the creation of the obligation.

[30]Ward LJ reviewed the authorities and observed at paragraph 40:

"One has to say that there are some who are critical of the "cardinal conclusion" that "ordinary contractual principles" do not apply to determine whether or not the parties had reached a concluded agreement. It was the way both counsel had initially approached the case. Once the agreement was established, then, but only then, had the court a discretion to exercise, namely whether or not to sanction the agreement and make the order (see Jenkins v Livesey). The result of Xydhias is that the court now also exercises its discretion in determining whether or not an accord was reached (see the highlighted words in paragraph 38 above.) That the effect of a compromise should receive different treatments in the Family Division from the other Divisions was established in Thwaite but Xydhias has now given the Family Division a different and unique test for establishing the very formation of the underlying agreement itself. I mention these doubts, and I feel bound to say I share them, but the correctness of that part of the decision is not a matter which arises in this appeal and I need say no more."

[31]The Court of Appeal go on to say that they thought there could be a valid consideration in the Soulsbury case. The conclusion of Ward LJ is found at paragraph 45:

"In my judgment, the cardinal conclusions expressed by Thorpe LJ are stated in terms which are too wide. I accept that if there are negotiations to compromise a claim for ancillary relief, then there is a duty to seek the court's approval as is stated in Smallman. But as Smallman states, and I do not see how that authority of this court can be ignored by me, even an agreement subject to the approval of the court is binding on the parties to the extent that neither can resile from it. [46] In my judgment the appeal can be disposed of upon this narrow basis: was this agreement between the claimant and deceased a compromise of an application for ancillary relief? The answer is no. There was no pending application for any financial relief to compromise. Despite Mr Howard's valiant attempt to expand that into any agreement, the effect of which is to effect a clean break between the parties and so potentially be within the ambit of the court's duty to scrutinise it, I cannot accept that proposition. They did not envisage going back to court to approve it. There was no need to do so. Either of them could have done so but neither chose to do so. The events upon which payment depended came to be fulfilled. This was, as the judge found, a perfectly valid agreement. The deceased failed to make the arrangements to provide the payment for the claimant he agreed to make. His estate was in breach of an agreement binding upon it. The claimant was entitled to her damages."

[32]The overall position it seems to me is that as summarised by Thorpe LJ in Haines v Hill

[2007] EWCA Civ 1284

at [56]:

"Once parties have reached an agreement to compromise an ancillary relief claim the court will not permit either party to renege save in exceptional circumstances."

[33]This proposition was established by the Court of Appeal in Edgar v Edgar as Ormerod LJ put it at 14, 17 and 25 respectively:

"Formal agreements, properly and fairly arrived at with competent legal advice should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement."

[34]But what of the Soulsbury argument that because there has been in effect mutual unilateral contracts in this case that the agreement is even more binding on the parties? It seems to me that I get some guidance from two more recent cases. The first decision of King J (as she then was) in S v S

[2008] EWHC 2038

where she drew together at paragraph 23 a number of propositions including that the existence of a concluded agreement is a matter of great weight. She considered the argument about consideration and how:

"It is not necessary for the purposes of this judgment to consider how Ward LJ's recent observation fits with the body of case law. Its significance for the purposes of the case management decision I have to make is that it is a further example of the importance of agreements in the eyes of the Court of Appeal."

[35]That is plainly right and that is going to be my guiding start for this judgment.

[36]The second case is Independent Trustees Services Limited v GP Noble Trustees Limited & Ors

[2012] EWCA Civ 195

where Patten LJ observed at paragraph 36:

"The statement by Thorpe LJ in Xydhias that the only way of making an agreement to pay money enforceable between husband and wife was to convert it into an order of the court has been criticised in a subsequent decision of the Court of Appeal as too wide; see Soulsbury v Soulsbury. But nothing in the later judgment detracts from the proposition that the making of the order has to be a proper and fully informed exercise of the powers contained in the 1973 Act and that, once made, it is the order which therefore governs the rights and obligations of the parties."

[37]The position seems to be this: in the lead up to the making of a financial remedy order, the parties are simply seeking to achieve an accord. That accord will not become binding until it has the approval of the Court. The Court will usually make it into an order. The parties’ accord is always going to be imperfect without the Court’s approval. The Court might refuse the bargain and having done so, neither party will have recourse against the other for breach of either of the two alleged unilateral contracts. There would be no contract as a condition precedent in all such negotiations (approval of the Court) would not have been met. Once the order has been made (and is effective – for example a final decree of divorce would be needed) the condition precedent has been met. There is an obligation created by the order of the Court. That usually supersedes any contractual obligation but I can see no good reason as to why after that point the parties are not also contractually bound. Mr Soulsbury was thus able to enter into a contract after the consent order on this basis.

[38]With that considerable body of law behind me, I turn to the facts of this case. It seems to me that Mr Yates KC's argument that all these matters were known to EN at the time of those negotiations is very compelling.

[39]Dealing with the particular matters which he raises, first of all the quantum of the costs which have been incurred on behalf of the wife by her solicitors and her legal team. The costs figures themselves have departed from the original indication which was an estimated budget of £592,468 to a current figure which is approximately £816,000. It may well be that EN sees these costs as exorbitant because he has had the assistance of expert very senior and very proficient counsel in the form of Mr Brazil. Mr Brazil has acted in this case at rates which are only marginally above that which one would expect to see incurred in a pro bono representative. By pro bono of course I mean free. It is very much to Mr Brazil’s credit that he was not prepared to see his lay client go unrepresented and agreed such a modest fee in order that his lay client was not condemned to all the difficulties that a litigant in person especially when confronted by a team of the excellence of Mr Yates KC and Mr Benson.

[40]The total costs which Mr EN has incurred, which include Mr Brazil adopting the role of solicitor as well as advocate, within these proceedings are in the extremely modest sum of £34,200. Previously the husband had retained other legal representatives whose costs were in total approximately £200,000 but appear not to have been for anything like the quantity of work that Mr Brazil has undertaken. EN has been extremely fortunate to find Mr Brazil to act for him and to act for that very modest fee.

[41]The agreement between the parties which is reduced to a heads of agreement is without a figure as to what the Wife’s costs might be. It simply says that the wife's costs are to be paid and they are to be paid from the family fund. I have no real doubt that the figure which is now put forward which has been broken down and explained to me by Mr Yates KC is well within what a reasonable definition of the wife's legal costs could have been expected to be. This is an immensely complicated case and the fees are commensurate with both the difficulties of the case and the sums in issue. Mr Yates KC says, “if it really had been the case that this was going to be so fundamental to the husband, he might have asked before the parties concluded their agreement for a figure or a cap to be inserted”. He could have done this on either the 15 April or 21 April during the negotiations. As it is, the husband's complaint comes in very late in the day albeit he explains this by saying that he has only recently learned that the costs are actually a good deal higher.

[42]As it stands, what the agreement provided in schedule 1 was the debts to be discharged from the sale proceeds including the legal fees owed to Messrs Vardags and whilst other items are challenged, that item was not challenged, although Mr Brazil is right in observe that that liability was not reduced to a number. The figure is to be interpreted on a Xydhias basis of what would have been the reasonable figure to incur and I do hold that it was of the order of the figure which has been sought by Mr Yates KC today.

[43]The secondary matter is in respect of the costs of a lady, Ms C. She has been assisting in the negotiations. She put forward her figures as being needed to be repaid and again the husband did not challenge that she should be paid. Instead what he said was he needed to see her contract. Mr Yates KC tells me there is no difficulty in the contract being produced. At the time of the pre-trial review her costs were £83,000. I am told they are now £120,000. It seems to me, again, reasonable within the scheme of the negotiation, that the figure of the £120,000 is reasonable. When I say that, both in respect of Vardags' costs and also in respect of the person who is assisting in the negotiations, I am not conducting an assessment. The parties rights in respect of any assessment are reserved to them. What I am trying to do is interpret what the parties intended within their agreement and resolve the dispute that they have agreed I should determine. The reasonable sum that was going to be paid by the wife was what the parties agreed. The reasonable sum that can be called upon for the wife to pay is as has been set out and so I do not see that as a good reason for departing from that as part of the parties' Xydhias agreement.

[44]However, the matter does not end there because Mr Brazil has a second string to his proverbial bow. He says, if I am wrong about this about the Xydhias agreement, I would say that the agreement should be varied. He is able to say that by taking advantage of the very little used provisions which are found within the 1973 Act in sections 34 and 35. Wilson LJ (as he then was) famously said in the Court of Appeal in Radmacher v Granatino

[2009] EWCA Civ 649

that he had never come across an incidence of these two sections being used at all, such is their rarity. That said, post the Supreme Court's decision in Radmacher v Granatino

[2010] UKSC 427

, they became more utilised.

[45]Section 34 provides for the validity of maintenance agreements and it provides in terms:

"If a maintenance agreement includes a provision purporting to restrict any right to apply to a court for an order for financial agreements, then- (a) that provision shall be void."

That is not the case here. But even if it was, it would only be the exclusion or ouster of the court provision that is void. "(b) Any other financial agreements contained in the agreement shall not thereby be rendered void or unenforceable and shall, unless they are void or unenforceable for any other reason, be binding on the parties to the agreement." "Maintenance agreement" is defined as:

"Any agreement in writing made, whether before or after the commencement of this Act, between the parties to the marriage being- (a) an agreement containing financial arrangements, whether made during the continuance or after the dissolution or annulment of the marriage; or (b) a separation agreement which contains no financial arrangements in a case where no other agreement in writing between the same parties contains such arrangements." "

Financial arrangements" means:

"Provisions governing the rights and liabilities towards one another when living separately of the parties to a marriage (including a marriage which has been dissolved or annulled) in respect of the making or securing of payments or the disposition or use of any property, including such rights and liabilities with respect to the maintenance or education of any child, whether or not a child of the family."

[46]The Xydhias agreement falls within Sections 34 and 35. Section 35 gives me power then to vary such an agreement.

[47]Mr Yates KC says very powerfully on behalf of the wife, that this is a “no evidence application”. He complains that it has been put together very much at the last moment and it might be unfair for the wife for this to be taken into account. I have sympathy for Mr Yates KC's position but by the same token, what Mr Yates KC is really asking for is an opportunity to adduce evidence and to have the matter looked at again. That would involve another hearing. I am in no doubt at all that the last thing that both HA and EN want is another hearing and that I should if I possibly can, anticipate such changes that might result in a variation of this order. I propose to do so. To adopt such a summary approach is fully in accord with the summary Xydhias approach which both parties have embraced.

[48]However, in doing so, I do recognise the very limited time that the wife's legal team have had to formulate their arguments and the fact they have had no time at all to produce evidence. I make it clear that what I am proposing to do. There has been no application for an adjournment to adduce further evidence.

[49]It seems to me that there are two matters which represent the changes of circumstances which are advertised in section 35(2)(a) as being valid bases for there to be a variation in a maintenance agreement. The first is, whether rightly or wrongly, the liability which is going to incurred by those additional items, including the properly incurred legal costs is higher than EN expected it to be. The second much more substantial point is the fear that both parties have that the property is going to sell for a good deal less than they hoped it will sell for when concluding their agreement. When I come to deal with the individual parts of the order, I am going to put in contingent variations which I will explain as I deal with those parts of the order itself.

The Draft Order

[50]What I propose to do is take the consent order as it is. I approve it in terms, only subject to the changes which I am about to make.

[51]The first issue I have to deal with appears in paragraph 19 and it is the loan from TP. My direction is that the loan from TP shall mean the loans owed by the applicant to TP in the sum of £300,000 plus interest. But there is also a further £5,000 which should not include any interest. This is provided that within 28 days of today TP executes a statutory declaration which is then disclosed to the husband confirming that she did lend that additional £5,000 to the wife in this case.

[52]The next issue is in respect of the instruction of agents who are going to hold money in escrow and also dealing with the question of conveyancing. This shall be the solicitors instructed on the sale of the family home (I assume that they will be the solicitors for the sale of the car parking space but if not it shall be the solicitors for the family home sale). Paragraph 25 will now read:

"The parties hereby irrevocably instruct, subject only to further order of the court, that the escrow agent and the conveyancing solicitor who is instructed on the sale of the family home and/or car parking spaces to distribute the proceeds of sale in accordance with the terms of this order directly to the parties who have been ordered to receive those sums."

In addition to that, I direct that if there is to be any such application for variation by an order of the court then that application should be reserved to me if available. Second, it should be on terms that the legal representatives of the parties shall be notified of that application and shall be at liberty to make representations in those proceedings. Just for clarity's sake, it is not an instruction that can be varied by just the mutual written agreement of the parties; it is going to require the assistance of the court.

[53]The next matter which I deal with is in respect of paragraph 29.2. 29.2 is on the basis that what the parties have now agreed and I agree to its recital as an order within the order itself, it now says:

"Each party agrees not to bring any case against the other as a result of these proceedings other than in respect of the order itself. Further, they will keep confidential all information used and received before and during these proceedings (including during the voluntary disclosure process) about the other party's financial affairs and not to disclose any such information to a third party other than a professional advisor acting in these proceedings or the implementation of this order."

[54]The fourth matter is in respect of the undertaking to set up a family fund. This is paragraph 30(b) and the second part which (i) is agreed that that will be included. In respect of (g) which is for an allowance for the applicant's holidays with the children in the sum of up to either £20,000 or £40,000 per annum, that should also go in, that was part of the agreement.

[55]I now come to paragraph 32(g) which is an allowance which is made for the applicant's holidays with the children. What I am going to direct there is a reflection of the current agreement that already exists between the parties and also the Xydhias agreement.

(g) will say:

"An allowance for the applicant's holidays with the children in the sum of up to £40,000 per annum, this to be considered a joint expense."

Then I add this:

"However, in the event that the property FMH was to sell for a gross sale price of £17.5 million or less, the figure shall be varied downwards to £20,000 per annum."

[56]The next item I am asked to deal with is in paragraph 34(c) which is where the husband is required to reimburse various items which will have been incurred during the course of the existence of the family fund. I agree with Mr Yates KC that this is in the nature of a capital provision and therefore not susceptible to maintenance variation. Even though it does refer back to “maintenance sums”, it does seem to me it is more in the nature of the capital provision. But in any event it seems that in accordance with the continuity of what has been agreed in the Xydhias agreement that provision ought to stand.

[57]The next matter is the undertaking in respect of the children's family's costs which is dealt with at paragraph 40. In 40.2 I think it is now agreed that the reasonable paid expenses, will have inserted, "in line with the costs currently incurred." There is then a figure which is:

"Following a trigger date a holiday allowance of £20,000 per annum per child until the later of each child attaining the age of 18 or the conclusion of each child's secondary education."

I am going to add after that:

"In the event of FMH selling for a gross sale price of less than £17.5 million, that figure will be varied downwards to £10,000."

[58]The next matter is in respect of the medical insurance which the husband has generously agreed to cover. Under paragraph 42 my ruling is that the wording will now provide:

"The respondent agrees and undertakes to take out on behalf of the applicant medical insurance cover including paying promptly any premiums due with Bupa Global International Elite or its equivalent (which shall include Russia) or any successor company to Bupa for the applicant until the first of either party's death or further order in the meantime. This is currently estimated at £13,032 per annum in order to secure the appropriate insurance."

The further order provision I have inserted on the basis that the husband shall be at liberty to apply for the extinguishing of this liability if the former matrimonial home was to sell for less than £17.5 million. "(b) The respondent shall provide the applicant with written evidence as soon as possible and in any event within one month of the date of this order or final order of divorce if later that this medical insurance cover is in place and shall provide the applicant with written evidence within 14 days of the date of renewal each year that the medical insurance cover remains in place."

[59]The next matter which I am asked to deal with is in respect of the order for sale of the family home in paragraph 44(b)(vii). To give its context, paragraph 44 reads:

"The family home shall be sold forthwith and the open market for sale in accordance with the order of Deputy High Court Judge Richard Todd KC dated 26 November 2024 and the following subsequent conditions shall apply."

Within (b), "the process of sale shall be applied as follows." and then within (vii):

"Repayment of any future, urgent and necessary cost relating to the family home, which: (a) are agreed in writing between the parties; (b) are not included in schedule 2; or (c) which have not been paid from the family fund; and which (d) either party has had to discharge from their own resources. The repayments shall be paid to the party who made the payment."

[60]The final matter is in respect of the child periodical payments. What is sought on behalf of the husband is that instead of there being £25,000 net per annum, there should be a CMS assessment. I am told and Mr Brazil has not contradicted this, that EN for jurisdictional reasons would not qualify for a CMS assessment. However, I am not content to leave the matter there. What the order will say in paragraph 48 is:

"Payments shall be at the rate of £25,000 per annum per child but that figure shall be varied downwards in the event that FMH is to sell for a gross sale price of less than £17.5 million in which case the figure shall be £12,500 per annum per child."

[61]I have considered whether or not there should be a sliding scale in respect of the price for FMH. I have come to the conclusion that what is already a necessarily complex order, would be over complicated by this further inclusion. I am fortified in that view by the fact that the sale price is almost certainly going to be driven by a third party, i.e. the purchaser, rather than the parties themselves and so the opportunity to manipulate the price to above or below £17.5 million is very much reduced. If there is any attempt to manipulate that price then that would merit an application back to court and such manipulation is bound to be visited with penal costs orders. Epiq Europe Ltd hereby certify that the above is an accurate and complete record of the proceedings or part thereof. Lower Ground, 46 Chancery Lane, London WC2A 1JE Email: civil@epiqglobal.co.uk