TX v YA (No 2) [2025] EWFC 349

Judgment date: 1 July 2025

https://caselaw.nationalarchives.gov.uk/ewfc/2025/349

Cusworth J. Concerns the wife’s successful application for financial relief after the parties’ divorce in Germany, where there is a Deed outlining agreed financial provision.

The judgment concludes composite proceedings pursuant to Part III of the Matrimonial and Family Proceedings Act 1984 and Schedule 1 to the Children Act 1989.

Background

The case is between a husband and wife, TY (aged 40) and XA (aged 41).

Having started cohabiting in 2009 the couple married in Austria in June 2012. They separated in 2018, and their divorce was finalised, in Germany, on 10 December 2019. The parties have two children, BA and PA, born in 2015 and 2016. The wife and children moved to London from Germany in 2023. The husband has re-married and has two young children (aged 3 and 2) with his second wife. He has lived in London since 2021.

The parties signed a notarised separation deed in Germany on 5 July 2019, expressing itself to have finalised the parties’ financial relationship, and the child arrangements. The deed was approved as an order by the German court; [21]. Notably, the wife received no outright capital provision and there was an assumption that she would earn her own income in the future.

Having moved to England in 2023 with the parties’ two children, permitted by the German court, the wife applied for relief under Part III. She questioned the weight that should be given to the German Deed due to the circumstances in which she entered it, and that it provided inadequate financial provision.

The law

Cusworth J applied the process under the 1984 Act which was set out by Lord Collins in the Supreme Court in Agbaje v Agbaje [2010] 1 AC 628; [54]. There must be sufficient English connection, and it must be appropriate to make an order bearing in mind ‘all the circumstances of the case’.

In this case:

• Though their connection was ‘at best tenuous’ during the marriage, there is no reference in the wording of the legislation that the marriage itself must have had a connection to this jurisdiction, only the parties themselves; [57].
• Though the parties had stronger connections with other European countries and their marriage was dissolved in one, they were now clearly habitually resident here and the German courts would no longer have jurisdiction to deal with any questions to do with the regulation of their financial relationship; [57], [58].
• There was no longer a route for the wife to seek further or different provision in Germany and the connections which they had have ‘now been severed’ in the years since 2019. Neither party is a national of that country; [58].
• Despite connections with third countries, each party ‘habitually resides’ in London, with the children; [59].

Cusworth J concludes:

‘The reality now is that the parties and the children are living here. Accordingly, there is no other obvious jurisdiction in which the wife should now more appropriately be claiming.’ [60]

He then considered the quantum and structure of the benefit which the wife has already received in Germany, the extent to which the husband had complied with its requirements, and that the German Deed must be treated as equivalent to a court order. The wife could have challenged it before leaving Germany, but she chose not to, [61]. He considers the reason for her omission under 16(2)(f) and whether the wife’s move to England was solely in the interests of the children or whether she was motivated by financial reasons; [62].

He considers the length of time which has elapsed since the divorce or separation, per s 16(2)(i). The wife’s apparent acceptance of the German Deed at German law makes ‘any attempt by her to now treat her application before this court as a financial remedy application on a clean sheet of paper very difficult to justify’. Counsel for the husband compared it to the set aside application in Burns v Burns [2004] EWCA Civ 1258, where a similar length of delay was considered fatal; **[63].

The Deed’s content indicates that such variation in due course was within the parties’ contemplation, even if elsewhere it was expressed as a comprehensive settlement between them; [66].

Outcome

Cusworth J concluded that the German deed is valid and binding under German law.

He accepted that he must avoid acting contrary to the terms of the Maintenance Regulation and considered articles 48, 42 and 21 of the Regulation.

He concluded that:

• A variation of the provisions contained in the German Deed would be permissible in the event of a sufficient change of circumstances.
• The substance of the original instrument, following article 42 of the Maintenance Regulation, cannot be reviewed.
• However, a reconsideration of the fairness of the original provision is not permissible; [70]. Permission granted under Part III of the 1984 Act has never ‘given the courts a free hand to start afresh when considering any appropriate relief’. Instead, the orders already made abroad, the extent that they have been complied with, and the availability of further claims in the other jurisdictions have to be considered again before a final outcome is reached (s 16(2)(e)–(f) of the 1984 Act; [71].

Cusworth J notes that the decision did not provide for an ‘immutable clean break in any circumstances between the parties’. Had it, ‘then the question of whether the use of Part III would have remained circumscribed would have been a harder one to determine’; [72].

Cusworth J concludes that there had been a sufficient change in circumstances for these parties since 2019, and in particular for the wife and children. Thus, a substantial variation in the terms of the maintenance provision is justified; [72]. His reasoning is set out at [73]–[90]. He considers:

• Medical evidence showing the wife’s limited earning capacity.
• Residence in London ([77]). The wife’s move to London was judicially permitted and it would be ‘artificial in the extreme’ to consider the wife and children’s costs as if they were still living in Berlin.
• The matters under s 16 of the 1984 Act and those under s 18, which imports matters set out in ss 25(2), (3) and 25A of the Matrimonial Causes Act 1973.
• The welfare of minor children of the family (s 18(2) of the 1984 Act).
• That the wife is in a net debt position whereas the husband, though his wealth is declining, is a wealthy man.
• Costs ([84]), which were significant for both parties.
• Sharing ([85]–[89]). In reconfirming that the wife should have permission to bring this application in TY v XA [2024] EWFC 96 at [71] Moor J expressly left open the question of whether or not it might be open to the wife to make a sharing claim. Moor J was echoing what King LJ reminded in Brack v Brack [2018] EWCA Civ 2862 **at [103] regarding the obligation, even where there is an effective PNA, for the court to take into account all factors found in s 25(2) MCA 1973 and to give proper consideration to all the circumstances. Cusworth J concluded that whether a sharing claim might be appropriate in the particular circumstances following an agreement should always be in the court’s mind.
• The appropriate level at which the claimant’s needs should be met will always remain a matter for the court, as Peel J clarified in AH v BH [2024] EWFC 125 at [50].

Conclusion

The provisions in the German Deed are inadequate to meet the wife’s needs in her new circumstances; [90]. The wife’s health concerns hindering her ability to earn as expected, her relocation to London, and ongoing needs, particularly those of the children lead to a conclusion that an extension of the term for and the amount of the provision of housing and of spousal support for the wife should be ordered.

Orders

Housing:

• The wife’s housing provision should be on a lifetime basis, but it should be capitalised to provide the wife with security.
• £2,550,000 (rent at her current level for the next 15 years, reducing by 1/3 for the rest of her life).

Maintenance payments:

• £3,500 pcm or £42,000 per year per child until the end of secondary education, with 1/3 then remaining payable to the wife whilst they continue in tertiary education.
• The husband should be responsible for the children’s educational costs, including extras, until the end of tertiary education.
• The term for the wife’s non-property related maintenance payments should be extended until she attains the age of 55 and thereafter reduce to a nominal level. They should not be capitalised now.

The wife requested for an additional lump sum to clear her debts incurred due to legal costs. Cusworth J decided not to make such an award as a lump sum, but rather to hear argument from the parties about their costs incurred. The wife incurred a bill almost three times that incurred by the husband. FPR Part 28 and PD 28A were considered; [104].

Cusworth J considered the possibility of making a separate order under Schedule 1 of the Children Act 1989 but concluded that such an award is neither necessary nor appropriate here due to lack of sufficiently exceptional circumstances to justify the use of the jurisdiction under Schedule 1, alongside a Part III order; [105].