NO v PQ [2023] EWFC 3623 February 2023
Published: 14/04/2023 09:00
https://caselaw.nationalarchives.gov.uk/ewfc/2023/36
Mr Recorder Rhys Taylor. Agreement between the parties upheld notwithstanding H’s predicament of real need – ‘an unusual outcome … but justified as the only fair one on the facts’; [8]. W aged 60 and H aged 58, long marriage, adult children. Parties incurred commercial lease liability for a restaurant and bakery, which judge found to be matrimonial debt in that it formed part of the arrangements that funded the marital lifestyle. However, after breakdown of the marriage, H established a new restaurant and from this point on the lease liability lost its matrimonial character. W did not want to join in the venture and the parties agreed that the cost of this would come from H’s side of the financial settlement. The venture, affected by lockdowns, failed notwithstanding H’s efforts. Creditors were circling. W’s position was to keep FMH and discharge joint debts, giving her net assets of £625,000 and using best endeavours to secure release of, in default of which sale of FMH. H sought 50% net value in FMH to start another business.
Held – appropriate to make order sought by W. The parties’ informal agreement was not final or couched in a formal legal document but their intentions were clear and they relied on it. H risked the money from his share of the settlement. He must bear the consequences of his commercial risk. Quotes at length from HD v WB [2023] EWFC 2 – summary here – which provides a useful summary of approach to agreements and predicament of real need. Authorities encourage doing what is possible to avoid predicament of real need. Two drivers against that: loss of that money to creditors, and H intended to use any award not for a roof over his head (which he had, owned by his partner) but for another venture and that was not the kind of alleviation of real need that is appropriate.
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