BL v OR [2023] EWFC 229 (Fam)7 December 2023

Published: 18/03/2024 11:50

Sir Jonathan Cohen. Final hearing involving a prenuptial agreement in circumstances where W had transferred her property, which amounted to W parting with the bulk of her assets. H was a wealthy man, and it was important to him that there should be a PNA so he could preserve his assets. During the marriage, W transferred her property to her daughters as a gift to make provision for them. W did not tell H of the intended transfer at any stage before its completion. H argued that her property would have been perfectly adequate for her own occupation had she not chosen to transfer it.

Under the PNA, H was obliged to and had paid W £738,341. Those sums were largely expended on her costs of these proceedings. The parties agreed that the income provision made in the PNA was not adequate. W sought an order of £5.6m which factored in the PNA. She put her housing need between £3–£3.5m plus costs of purchase and a Duxbury award of £3m which she calculated would provide an income of £175k pa. H offered to pay W the sum of £4m, in addition to the sums he had already paid. He put W’s housing needs at £2m including costs of purchase. Any provision above that sum should be on the basis that the entire sum would be held on trust for him or his sons to be repaid upon W’s death. H argued that a Duxbury figure of £2m was sufficient. The arguments resolved around what comprised a reasonable housing fund and a reasonable capitalised income fund.

On behalf of W, it was argued that unless W’s actions of transferring her property were pleaded as conduct which it would be inequitable to disregard, or H showed that this was wanton dissipation, which would lead to an addback, it could not be taken into account in assessing her needs. These argument were deemed unsustainable as the fact that W had transferred her property without H’s knowledge was a material circumstance. It was immaterial that it was not pleaded as conduct or wanton dissipation. W’s actions were an important part of the factual matrix in assessing what was a fair way of meeting her needs, and to ignore this in the circumstances of the PNA would plainly lead to unfairness.

Held, a reasonable housing fund for W was assessed at a sum up to £2.6m. H would have a share in the equity of the new property, as it would be unfair for W to be given another home to pass on to her children absolutely upon her demise. The charge in favour of H would be 40% and not 100% as sought by him as W would be investing her own time and money in making the property a comfortable home for her, and she might need to raise funds on the property in the future, and be able to substitute an alternative property; [65].

The appropriate figure for income provision was £140k pa capitalised to require a payment of £2.269m. W had £555k available to her, which H proposed should be deducted from the award. The judge declined to do so on the basis that she could use those sums to purchase furniture for her new home, pay a small sum to obtain a full state pension and meet the incidental costs of living. Also, the vast majority of the assets in her name (£555k) represented a small property in Malta owned by W, which needed work before it could be sold, and the timing of the sale was unknown.

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