DJ Ashworth. Final financial remedy hearing involving the weight to be attached to a pre-nuptial agreement, non-matrimonial and matrimonial property, and the computation of assets.

Facts

Wife (aged 42) and husband (aged 52) married in 2007 and divorced in 2021. There were no children of the marriage, although the wife has three children from another relationship. The parties lived in a property legally owned by the husband’s father, although, following the party’s separation in 2016, the property was transferred into the joint names of the husband, his parents and his sister.

Pre-nuptial agreement

The judge was satisfied that at some stage, either before or immediately after the marriage, the wife signed a document purporting to be a pre-nuptial agreement, but he was not satisfied on a balance of probabilities as to what it was, the circumstances in which it was signed, or its terms. It excluded the wife from making any financial claim. The judge considered that the pre-nuptial agreement was unfair to the wife at the time the agreement was entered into and was unfair now; and therefore the judge did not attach any weight to any agreement in determining computation and division of the assets.

The husband working in his father’s business

The wife advanced the argument that the property portfolio was a family business where the husband played a full and active contribution and therefore he had access to a collective income. The judge found it unlikely that that the husband fully and effectively co-managed a business with his father, beyond doing odd jobs for him. In any event, the judge agreed with Roberts J in MCJ v MAJ [2016] EWHC 1672 that rental income from non-matrimonial property used to fund the party’s living expenses does not change the fundamental nature of the capital asset.

Beneficial ownership of properties

There were six properties purchased prior to the marriage and no evidence that the husband paid or contributed towards the purchase price of any of the properties. In relation to the former matrimonial home, this property was purchased in the husband’s father’s sole name in 1977 and following separation, in August 2016, transferred into the joint names of the husband, his parents and his sister. DJ Ashworth held that the husband did not have a beneficial ownership in any of the properties other than the former matrimonial home.

Computation of assets

DJ Ashworth was satisfied that there was no matrimonial property, and the sharing principle did not apply. The husband had beneficial interest in a non-matrimonial property and the only issue for the court to determine was whether the wife's needs were currently being met and to the extent they were not, whether the husband had the ability to raise a payment to meet needs.

Cohabitation

DJ Ashworth first set out that there is no strict legal definition of ‘cohabitation’ or formula to apply. The court will look at all the circumstances of the relationship including, but not limited to, intermingling of finances and financial dependency as well as the amount of time spent together. The judge was satisfied that the wife was cohabiting, relying partly on surveillance evidence and the wife’s evidence being implausible.

Outcome

In conclusion, the judge was satisfied that there were no matrimonial assets available for division and the only non-matrimonial property available to the husband was his interest in the former matrimonial home. The wife was assessed as currently having no needs as she was cohabiting and would continue to do so for the foreseeable future. The judge commented that in the event that this was not the case and her relationship with him had ended, she had the option of seeking financial provision from him for the children to include the settlement of property.