CMX v EJX (French Marriage Contract) [2020] EWFC 136

Published: 02/11/2022 09:00

Moor J. The Husband (‘H’) was a 56 year old French national and Chairman of Industrial Investment Banking at bank. The Wife (‘W’) was French/Lebanese/British, 54 years old and had a successful career in the bottled water industry. They lived in England.

Mr Justice Moor (‘the Judge’) was concerned with the enforceability of a french marriage contract (‘the Contract’) signed by the parties when living in France. The Contract adopted the separation of property regime which is not an uncommon feature of french divorces.

W could not remember discussing entering the Contract before marrying H. She had no legal advice and there was no formal disclosure of either party’s resources; [16]. W was never in any doubt that the fruits of the marriage would be joint an equal; [20].

H argued that the parties knew the full ramifications of the Contract. He accepted there was no separate legal advice but said that the Notary with whom they signed the Contract was under a duty to advise both parties as to the legal implications. The Notary was instructed by W’s family and therefore W knew what she was signing up to.

Supported by the authority of Versteegh v Versteegh [2018] EWCA Civ 1050, the court held that the Radmacher test for upholding this Contract was satisfied; but note that the Contract would have failed the Radmacher test if it had attempted to exclude a needs based award as it would not then have been fair.

The Judge made a needs-based award having computed the assets as £24,360,070 and assessed W’s overall need as £9,466,452.

In respect of child periodical payments, the Judge recognised the convenience of Mostyn’s approach to top-up claims set out in CB v KB [2019] EWFC 78 but found it to have ‘significant disadvantages’ and opted not to apply that approach in this matter.

The Judge made plain his view in sharing cases of the procurement of expensive pension reports aimed to achieve equality of income on retirement. He found:

‘if assets are to be divided equally, they should be divided equally… the direction [to order a report to calculate a division of pension on the basis of equality of income in retirement] almost enshrines the Duxbury paradox into practice. It cannot be right, in general, that the younger you are, the greater your award. In any event it has not place whatsoever in equal division cases.’ [50]
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