Facts

Moor J (‘the judge’) dealt with an application made by Clarissa Gisela Pierburg (‘W’) for financial provision after an overseas divorce pursuant to Part III of the Matrimonial and Family Proceedings Act 1984. The respondent was Jurgen Pierburg (‘H’). The parties married in 1985 in Neuss, Germany. There was one child of the marriage, Vali, born in 1987. He was educated in England and had also previously received significant medical treatment there. In 2000 the family moved to Switzerland, primarily for tax reasons.

During divorce proceedings in Germany, it became clear to W that the German court would not award her more than the sum of the £15,000 per month that she was already receiving, let alone capitalise that award. Further, W complained that H had insisted that any settlement be held on trust. Therefore, W elected to waive her entitlement there as the case could have taken over ten years to resolve.

There was a significant development a couple of months before the final hearing in which a supposed agreement (‘the agreement’) was reached between the parties in settlement of the financial proceedings. Although W disputed the legitimacy of this document, insisting firstly that only ‘proposals’ were made, and secondly that she was pressured into signing it. The agreement provided:

1. Monthly lifetime maintenance in the sum of €40,000;
2. Cash payment at the conclusion of English proceedings at €1.5 million and a second payment of €1.5 million after one year; and
3. Their English property, Kinnerton St, was to be made available to W on a lifetime basis insofar as this was possible (if it was not possible then another similar property would be purchased), and the cost of refurbishing it was to be borne by the owner (who would most likely be Vali).

Issues

• Whether it was appropriate to make an order considering all of the circumstances of the case, with particular regard being given to those factors at s 16(2) of the 1984 Act.
• Whether the agreement signed in Dusseldorf was legitimate?
  • And if so, should it be binding on W?

Held

Section 16(2) factors: sufficient connection

The judge found that the parties had a significant connection to the United Kingdom. The UK was a place in which they had a home, and their son was educated. The judge did not consider either the German or Swiss links to be so strong as to prevent him from making an order.

Section 16(2) factors: financial benefit outside the jurisdiction

W had received no benefit at all outside of the jurisdiction due to her termination of divorce proceedings there. The judge found that W’s withdrawal from those proceedings was not fatal to her application in the UK.

The agreement

Although the judge found that the agreement had been repudiated by W, he held that the agreement would have been enforceable had W not repudiated it. The judge reminded himself of the law as to the approach to agreements found in two cases, Edgar v Edgar [1980] 1 WLR 1410 and Xydhias v Xydhias [1998] EWCA Civ 1966:

1. In Edgar, although the husband had superior bargaining power, he had not been shown to have exploited it unfairly so as to induce the wife to act to her disadvantage; and
2. Xydhias is the authority for the proposition that, in relation to agreements reached in the family law context, ordinary contractual principles do not apply. As the final award was always fixed by the court, the purpose of negotiations was to reduce the length and expense of the legal process.

With the assistance of witness evidence, the judge found that W had reached an agreement with H voluntarily, and with her eyes open, and held that this agreement should be encapsulated in an order.