A Wife v A Husband [2023] EWFC 2009 November 2023

Published: 27/11/2023 23:32


HHJ Willans. Financial remedy application involving a single issue, namely, what were W’s housing needs and how should those needs be funded. There had been a jurisdictional dispute between Italy and England, with H arguing that all matters be heard in Italy, and W holding out for this jurisdiction. W and the child of the family were habitually resident in England, and the FMH was located here. The parties brought no assets into the marriage and under the Italian system were taken to have elected community of property.

H inherited an estate which comprised a property portfolio in Italy and liquid funds worth €1.85m. Upon receipt, the parties entered a notarised agreement under which existing property would be held as tenants in common, but any future property, including the inherited resources, would remain the sole property of the party who received it. By agreement, the liquid funds were paid into an account in their joint names. The parties later purchased the FMH using the inheritance. W sought a housing fund of £1.25m for a three-bedroom property in England to house herself, the child, and her parents when they visited. H argued that W needed £350k for a two-bedroom property in Italy, which was where he said she intended to live. Alternatively, appropriate housing could be obtained for W in England for £450–£500k.

There was no principled challenge to the nuptial agreement, but there were some factors that softened its application. These were the birth of the child and the fact that they were unable to retain the benefit of the FMH, which would have provided in excess of £800k to assist in meeting W’s housing needs without reference to the protected resources. If the agreement had not been modified, the outcome would have been deeply unfair; [47]. Though the inherited resources were relied upon to support the family, this did not cause them to lose their protection under the nuptial agreement. The judge drew a distinction between the use of non-matrimonial assets during a marriage losing their non-matrimonial character due to mingling, and resources under an agreement which were intended to be protected. In the case of the former, the passage of time blurs the distinction between matrimonial and non-matrimonial assets, whereas this does not apply in the case of the latter; [45].

Held, W’s housing needs were for a two-bedroom flat in Brentford as opposed to three-bedroom house in Chiswick as this was where W lived for the last seven years. Both parties had identified Brentford as appropriate for the child and W in previous proceedings. There was no sound justification to now move to Chiswick. It was also inappropriate to invade protected resources under the agreement to gain a larger property to house family members on occasional visits. The judge was also satisfied that W would reside in England. Regarding the costs of the property, the judge concluded that a housing fund of £700,000 was appropriate, as this would provide a more spacious and comfortable property to reflect all the circumstances of the case.

Overall, a lump sum of £700,000 was awarded on a clean break basis, amounting to 14.5% of the gross value of the property portfolio (would have been 67% of the matrimonial assets on a clean break basis). This was considered a fair and balanced settlement, which invaded the resources under the agreement in a manner required to meet fairness but not beyond this. The lump sum sought by W would have been an unjustified and excessive invasion of the agreement. But for the litigation, W’s housing needs could have been met entirely from matrimonial assets leaving the assets under the agreement entirely untouched.

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