Francis J. A ‘paradigm case’ of how not to conduct litigation in a short childless marriage.

The parties were married for three years and had no children. W’s case was that she has assets of £61.5m, H’s case was that W’s assets are £74m. H stated that he has assets of c.£850,000, although about £500,000 was made up of a share of a property in Spain which he is unable to liquidate.

W works for her father’s company in Dubai and has income from all sources of approx. £600,000 a year. H asserted that W earns £1m a year. H does not work and said he is unable to.

The parties signed a prenuptial agreement on the day of their marriage, which provided each to retain their separate property, any jointly owned property would be split between them and neither would bring a claim against the other in any jurisdiction.

H had initially brought a claim for £9.6m plus periodical payments of £208,000 a year for two years and therefore a global sum of £10m. His claim by the final hearing had reduced by 75% to just £2.4m. W says that she should pay H nothing.

The court considered that, even without the prenuptial agreement, H’s claims were overblown.

Shortly after the separation, W’s Dubai solicitors sent a letter to H asking him to leave the FMH within three days or face forcible removal. His right of residence had been revoked earlier that month (which he said he felt forced to consent to) and the letter threatened him with divorce proceedings in and even maintenance in Dubai. This flew in the face of the prenuptial agreement which provided for an English jurisdiction clause.

The judge found that W placed trust in her Dubai solicitors and approved the letter and that the letter was sent because it was what was recommended to her. But H could not be blamed for being aggrieved by it. The letter went some way to explaining the stance taken by H.

W applied to have the prenuptial agreement upheld. The burden of proof was on W to establish that it was of decisive weight and no provision should be made for H as a result.

W’s case was that:

• H entered into the prenuptial agreement freely and willingly with legal advice;
• H was aware that W was very wealthy and he understood the consequences of the agreement;
• the prenuptial agreement was clear and intended to be determinative;
• H’s needs are met by his own resources.

H’s case was that:

• H should not be held to the terms of the prenuptial agreement;
• H was persuaded to enter into it by W as a concession to her father, but W assured H that, in reality, he would always be provided for;
• H received limited preliminary advice on the agreement and was without the benefit of financial disclosure of W;
• H waived privilege on legal advice and it expressed concern about lack of financial disclosure;
• when W eventually provided financial disclosure, she deliberately grossly understated her wealth (stating £18–23m versus £70m now disclosed) by excluding her business assets and some property interests.

The parties were unable to agree date of cohabitation. H said it was October 2016, W said it was April 2017. They also argued about the date of separation. The judge found that H was being dishonest about the issue of the date of cohabitation. The date was not relevant but the issue of H’s credibility was.

An SJE report was obtained in relation to H’s mental health and his ability to work, which stated that H was unable to work and should not do so for six months and required in patient treatment.

The judge considered the terms of the prenuptial agreement in which there was disclosure in summary form and a recording that disclosure was substantially complete. The judge commented that, while full and frank disclosure is always the gold standard to aim for, if there is an understanding that one party is exceptionally wealthy, the economically weaker party cannot get out of the consequences of a prenuptial agreement because the number given for that wealth was lower than the truth. The court will look at the effect in each individual case.

The judge considered the file from the solicitors who gave advice on the prenuptial agreement to H, and found that H went into the agreement and signed it with his eyes wide open, knowing what it meant.

W had made offers in the lead up to the final hearing which involved payments to H. H tried to rely on those offers as W recognising the unfairness of the prenuptial agreement. The judge concluded that it would be wrong to criticise those offers or say that they supported any sense of the prenuptial agreement being unfair, instead they were proper attempts by W to offer to pay H the money rather than to go to court.

The judge gave effect to the pre-nuptial agreement before considering H’s reasonable needs. His needs included c.£22k for in-patient treatment recommended by the SJE, and a lump sum to meet his income needs for three years. The judge was clear that it would be wrong for him to require W to provide the funds for H to purchase a house, both in the context of the prenuptial agreement but also in the context of a short childless marriage. The judge allowed a lump sum to pay for two years of rent, plus funds for a car.

The judge ordered W to pay H a lump sum of £400,000 within 28 days.