FO v PN

A collection of applications and court orders.

Material from the wife including her Form E dated 30^th April 2024, her answers to questionnaire and replies to a schedule of deficiencies, and her witness statements dated 20^th January 2025, 14^th March 2025 and 23^rd April 2025.

Material from the husband including his Form E dated 25^th May 2024, his answers to questionnaire and replies to a schedule of deficiencies, and his witness statements dated 17^th February 2025, 19^th March 2025 and 28^th April 2025.

Various expert reports from SJEs instructed on valuation and tax issues.

A Pre-Nuptial Agreement signed by the parties dated 22^nd May 2012 and a Deed of Revocation dated 28^th April 2022.

Properly completed ES1 and ES2 documents and a detailed Chronology.

Selected correspondence and other disclosure material.

The husband is aged 70. He is English but has at times in his life resided and worked overseas. He more or less fully retired in 2020 after a long and very successful and impressive business career, from which most of the family wealth derives, although he did some limited Non-Executive work between 2021 and 2023. He has a child from a previous relationship, namely X, now an adult, whose mother sadly died about 20 years ago. X has suffered from some mental health challenges in her adult years and continues to be partially dependent on her father. The husband is currently in a non-cohabiting relationship. He had some heart problems in 2020 (including undergoing an operation which hastened his retirement), obtained an autism diagnosis in 2023 and in recent years has been prescribed with the anti-depressant Sertraline; but it has not been part of his case before me that any of these health conditions has a significant impact on the current dispute, other than providing a background. He self-describes as being prone to a tendency to be “brusque and direct”, which he attributes to his autism and it was certainly possible to see some of this in his evidence; but he presented before me as a pleasant, courteous and intelligent person. He currently lives in the former family home (hereinafter referred to as ‘the FMH’) in England.

The wife is aged 43. She originates from Country S; but has spent most of her adult life in Europe. She is an intelligent person who is university educated to Masters Degree level in Psychology and is a qualified teacher; although she currently works as a part-time nursery assistant. She obtained an ADHD diagnosis in 2021 and presented as a pleasant if slightly anxious person, perhaps inclined to self-analysis and a sometimes pained search for a solution to life’s problems. She currently lives in the property at Flats E and F (being adjoining flats) in England.

The parties met in the Country T in August 2008 when the wife was working as a children’s nanny. They began a romantic relationship in April 2010, began cohabiting in November 2010, became engaged in July 2011 and married in June 2012. The fact of a 27-year age difference between the parties does not appear to have been a problem for either of them; but has perhaps contributed to a power imbalance which (in the context of their different personalities) has created difficulties in the relationship over time.

Throughout their relationship they lived in England. From 2014 this was at the FMH (having rented a property a few doors away for a period of time before that).

The wife became pregnant with her first child in late 2011 (a mutually planned pregnancy) and in due course a marriage date in June 2012 was identified. At this time the wife had little wealth to bring to the marriage and the husband had substantial wealth. In the months leading up to the marriage the parties agreed to execute a Pre-Nuptial Agreement and, after a process of legal advice and disclosure, a document was signed on 22^nd May 2012 (hereinafter referred to as ‘the PNA’). I shall discuss in more detail below the significant features of the process and the agreement; but it is common ground that it was consensually executed at the time. Under its terms, if implemented on a divorce, it would have led to an unequal division of capital assets in the husband’s favour, although objectively reasonable and commensurate with the different respective contributions to the family wealth. At the time of the marriage the wife considered the provision made in the PNA to be fair, even generous, to her. Only later (and particularly in the context of the property located in Country T, hereinafter referred to as ‘Property G’) did the PNA become a source of unhappiness and controversy.

The marriage produced two children:-

By 2020 the marriage was in some difficulties, perhaps exacerbated by the longer periods of proximity caused by the husband’s heart operation, retirement from work and the covid lockdown requirements. The disclosure process has identified a list made in July 2020 by the wife for her own purposes which sets out the things she, at that point, ten years into a relationship, disliked about the husband. The list is, for me, a good illustration of the reality of the situation at that time and in the period thereafter - not that the marriage was over but in fact that the wife, having become irritated by certain aspects of the husband’s character and personality, hoped she might persuade him to reform himself and thought, if he did, it would make the marriage a happier place for her. In the same spirit the parties attended some couples’ therapy sessions between September 2020 and May 2022. The talk in therapy appears to have been of reform of character and behaviour (mainly that of the husband), the renewal of wedding vows and a new start within the marriage and (with her background in Psychology) the wife was keen to try different therapeutic models to help move the marriage to what she thought would be a better place. To his credit, it is clear that at this stage the husband loved the wife, wanted the marriage to continue and did not rule out trying to reform himself in the hope of healing the difficulties in the marriage.

The year 2021 produced some particular sadnesses and stresses, including the premature death of the husband’s young nephew from a brain tumour in June 2021 and the death of the husband’s mother in September 2021, at age 94. These events were, not surprisingly, a cause of distress for the husband and, for a time, the husband took prescribed anti-depressant medication, Sertraline.

From September 2021 the wife asked the husband to confront the issue which had been troubling her for some years – the provisions in the 2012 PNA. The particular headline problem was her discovery, not long after the marriage, that Property G, identified in the PNA as being specifically owned by the husband, of which the wife would be entitled to a half share of its value in the event of divorce, turned out in fact to be owned (to the extent of 99% via a company in Country T called Company L) by X so that the husband only owned 1% of it. Whilst this was the headline problem, and the wife was not pleased at the husband’s disinclination to rectify the problem, the wife also became unhappy with what she perceived (rightly or wrongly) as the generally unfair and unequal nature of the PNA. I shall discuss below in some detail what happened; but it is common ground that both parties took further legal advice (from the same lawyers who had advised them in 2012) and entered into Deed of Revocation on 28^th April 2022 (hereinafter ‘the DOR’) which revoked the PNA and provided for an equal division of all assets in the event of a divorce, i.e. it was significantly more generous to the wife than the 2012 agreement.

Not very long after 28^th April 2022 (I shall discuss in more detail below the timescale), the marriage completely broke down and the parties separated. Divorce proceedings were commenced by the wife on 4^th February 2023. A Conditional Order of Divorce (Decree Nisi) was ordered on 28^th November 2023. A Final Order of Divorce (Decree Absolute) awaits the outcome of the financial remedies proceedings and is not, in itself, controversial.

On 10^th November 2023 the wife issued Form A.

A directions order (in the nature of a First Appointment order) was made by HHJ Harris on 24^th March 2024.

A private FDR took place with James Ewins KC as the tribunal on 18^th July 2024; but unfortunately this did not produce a compromise.

The parties submitted a post-pFDR direction order by consent which I approved on 20^th September 2024 listing the case for trial in May 2025.

I dealt with a PTR on 7^th April 2025.

A final hearing has taken place before me on 6^th, 7^th, 8^th and 9^th May 2025.

I heard oral evidence over the first two days, submissions on the third day and have written this judgment on the fourth day and am planning to hand it down by email to the parties on 12^th May 2025.

It shall be the duty of the court in deciding whether to exercise its powers under section 23, 24, 24A or 24B above and, if so, in what manner, to have regard to all the circumstances of the case, first consideration being given to the welfare while a minor of any child of the family who has not attained the age of eighteen.

As regards the exercise of the powers of the court under section 23(1)(a), (b) or (c), 24,24A or 24B above in relation to a party to the marriage, the court shall in particular have regard to the following matters:-

Granatino v Radmacher [2010] UKSC 42;

Edgar v Edgar [1980] 1 WLR 1410;

Brack v Brack [2019] 2 FLR 234;

AH v BH [2024] EWFC 125;

MN v AN [2023] EWHC 613;

AT v BT [2023] EWHC 3531; and

SC v TC [2022] EWFC 67.

Granatino v Radmacher [2010] UKSC 42 (Per Lord Phillips, delivering the majority judgment in the Supreme Court):-

“[75] White v White [2001] 1 AC 596 and McFarlane v McFarlane [2006] 2 AC 618 establish that the overriding criterion to be applied in ancillary relief proceedings is that of fairness and identify the three strands of need, compensation and sharing that are relevant to the question of what is fair. If an ante-nuptial agreement deals with those matters in a way that the court might adopt absent such an agreement, there is no problem about giving effect to the agreement. The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair. It is an important factor to be weighed in the balance. We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements, in preference to that suggested by the Board in MacLeod v MacLeod [2010] 1AC 298: The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

…

[78] The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best. This is particularly true where the parties agreement addresses existing circumstances and not merely the contingencies of an uncertain future.”

MN v AN [2023] EWHC 613 (per Moor J)

“[85] Litigants must realise that it is a significant step to instruct top lawyers to prepare a PNA prior to marriage. It is highly likely they will be held to these agreements in the absence of something pretty fundamental that vitiates the agreement. These agreements are intended to give certainty. Those signing them need to know that the law in this country will provide that certainty. Litigants cannot expect to be released from the terms that they signed up to just because they do not now like what they agreed.”

Granatino v Radmacher [2010] UKSC 42 (Per Lord Phillips, delivering the majority judgment):-

“[71] The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.

[72] The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way.

…

[81] Of the three strands identified in White v White [2001] 1 AC 596 and McFarlane v McFarlane [2006] 2 AC 618, it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned.

[82] Where, however, these considerations do not apply and each party is in a position to meet his or her needs, fairness may well not require a departure from their agreement as to the regulation of their financial affairs in the circumstances that have come to pass. Thus it is in relation to the third strand, sharing, that the court will be most likely to make an order in the terms of the nuptial agreement in place of the order that it would otherwise have made.

MN v AN [2023] EWHC 613 (per Moor J):-

[80] I accept that the Wife was under pressure, that is not sufficient. It has to be undue pressure. I accept that he was saying that there would be no marriage without a PNA but that is commonplace and again, cannot be a vitiating factor by itself.

…

[85] It follows that I am quite clear that there is no vitiating factor in this case that means that this PNA should be ignored; nor is there any factor that means that I should give it less weight than would otherwise be the case.

AT v BT [2023] EWHC 3531 (per Francis J):-

”I want to make it clear that I am not criticising the husband in saying that. I am not suggesting that the husband was being overbearing or acting inappropriately, I am merely reciting the simple facts of the pressure which the wife was placed under at this time. As Mr Bishop put it, “the guests had all assembled from various parts of the world, presents had been given out, the wedding was ready to go tomorrow”. What was anyone in that situation to do? Of course, this was the culmination of a process. I recognise that this was not something that was simply thrust into the wife’s hands the day before the wedding, but it seems to me that the circumstances to which I have referred are highly relevant when I think about and make a judgement about the appropriateness of holding the parties to the terms of this antenuptial contract. It is, in my judgement, wrong to treat this as a binding contract in the circumstances to which I have referred. When one looks at the numerous authorities on the subject of pre-marital agreements or at the draft legislation that was at one time being put forward in relation to prenuptial agreements in this country, there has been a thread running through the principles applicable, and that thread is about pressure, timing and independent advice. I have already referred to the pressures that I have identified and it is my judgement that those pressures break the thread that runs through those principles to which I have adverted.”

There are two real properties in the list. The first is the FMH, which was purchased in joint names in 2014 and was the family home from 2014 to 2022, is currently occupied by the husband and it is agreed that this will be transferred to him by my order. The second is Flats E & F. Flat E was purchased in joint names in February 2022 and Flat F (adjacent to Flat E) was purchased in joint names in September 2022. The wife currently occupies these flats, which now have an interconnecting door, and it is agreed that these will be transferred to her by my order. The values (of £3,500,000 and £2,050,000 respectively) are agreed (as per the table below) and it is common ground that there is no latent CGT liability within the properties.

The Investment Portfolio (now worth £12,692,506) was transferred from the husband’s sole name to the joint names of the parties in November 2021 as part of the process which led to the DOR in May 2022. The latent CGT figure is agreed at £118,904. A dispute has arisen, after submissions were closed, as to whether an amount which the husband could have removed from the Investment Portfolio, but did not remove, should be taken out of the equation. I do not propose to do this because, as has been said on behalf of the wife, he could have removed it and then paid his outstanding legal costs (which is what the wife did). I propose to include his outstanding legal costs debt within the mathematics, which works to his advantage. If I do this and allow a disregard the money he could have taken out of the Investment Portfolio, but didn’t, that would not be fair as between the parties. I therefore propose to leave the figure in at its full amount of £12,692,506.

There are six EIS shareholdings in the husband’s name. These are illiquid assets and the values in the table below are uncertain, but there is an agreement between the parties that, whatever else I order, these will all be shared equally between the parties under a Wells sharing exercise. In the circumstances, their value is not hugely important as each party will gain or lose according to the eventual performance of these shares. Accordingly, I have left in the figures originally included in the ES2.

The husband owns 1% of the shares in Company L, a company which owns Property G. The other 99% of the shares are owned by the husband’s daughter X. The value of the property is agreed at €5,500,000 so the husband’s share is, in theory, worth £45,598. The husband suggests that I should discount this figure down to zero on the basis that he is unlikely ever to ask X for his 1% share. The wife suggests it should be placed on the asset schedule at full value. In view of the inaccessibility of this asset, I propose to discount it by 50% and therefore to place a figure of £22,799 into my schedule, doing my best to impose a fair and pragmatic solution on this dispute, which is a relatively small part of the overall argument.

The husband has five pension funds with a total CE of £930,033. Notwithstanding that he is aged 70, he has not accessed any of these pension funds for income or drawdown purposes, but I see no reason why he should not now do so. Neither party has suggested or investigated the possibility here of any pension sharing orders and, since the preference of both parties is to include them in a division of assets at their CE value, I propose to adopt this way forward.

The ES2 includes some chattels, but I have decided to omit these from my schedule on the basis that the parties’ chattels should be divided in a fair way in a separate and discrete exercise.

The “HW Limited final payment” owed to the husband is agreed at £11,512.

After close of submissions, and not mentioned at all during the hearing (save for a passing reference to TBC), I have been sent by the wife’s legal team an email from Deloitte, the wife’s tax adviser, suggesting that she may be liable for tax on her earnings from the Investment Portfolio in the tax years ending 5^th April 2022, 2023, 2024 and 2025, a total of £566,744. It appears that the wife has not filed any tax returns for these years and there may be late payment interest and/or penalties on top of this. A response from the husband’s legal team suggests that they have not yet had a chance to review this email and consider that the wife might be able to take lawful and reasonable steps to reduce or mitigate this sum. Nonetheless, in so far as this liability does exist, I take the view that the principal part of the debt needs to be taken into account as the equivalent debt from the husband’s side has been factored in. In so far as there are additional late payment interest or penalties then these should be borne solely by the wife, who should have filed her tax returns timeously. Further, in so far as this debt can be mitigated by lawful steps then the wife should be expected to do this. In view of the uncertainty of the size of this debt, and the late submission of the email, I shall not include it in my schedule; but in so far as the principal debt is established to exist then it will need to be factored into the outcome of the case and I shall specify how this is to be done below.

Both parties had full legal advice from experienced family lawyers before signing up to the PNA. The wife had legal advice from Richard Hogwood of Stewarts, Solicitors, and the husband had legal advice from Victoria Francis, then of Speechly Bircham, Solicitors. Both Solicitors gave express certifications that they had respectively advised the parties on the contents, suitability and fairness of the proposed PNA. There is no very substantial suggestion that the process was unduly rushed or unduly pressured (though the wife was pregnant at the time and had that pressure) and the PNA seems to have had a gestation period of several months leading up to May 2012.

The process involved a suitably full disclosure of the parties’ respective financial position in 2012 and the PNA specifically recorded in an annex what had been disclosed. What was disclosed, which illustrates that the husband already had substantial wealth and the wife very little wealth, can be summarised and tabulated as follows:-

Husband

Wife

The express terms of the DOR are very clear and the important provisions are the following:-

“E With a view to assisting with this process, and in the light of their wish that

henceforth they each continue in the Marriage as equal partners and with full

transparency, [the husband] and [the wife] wish to revoke the Pre-Nuptial Agreement and instead to proceed in accordance herewith.

F [The husband] has received English family law advice from Victoria Francis of Newton Kearns. [The husband] has received this advice prior to the execution of this Agreement and his legal adviser has signed the endorsement to this Agreement confirming the same.

G [The wife] has received English family law advice from Richard Hogwood of Stewarts. [The wife] has received this advice prior to the execution of this Agreement and her legal adviser has signed the endorsement to this Agreement confirming the same.

H Each party fully and completely understands each provision of this Agreement both as to the subject matter and legal effect and are fully aware of their respective legal rights that each of them may be releasing pursuant to the terms of this Agreement.

…

2 To the extent not already done and save where it would not be reasonable to do so (perhaps for reason of tax or other costs), each party shall as soon as reasonably practicable hereafter arrange for all their assets and interests to be transferred into joint names in equal shares with the other.

3.

The Pre-Nuptial Agreement is hereby revoked in its entirety.

4.

Reflective of the equal nature of their relationship, it shall henceforth be deemed that all assets and interests (but not liabilities) of each party both now and accrued and acquired hereafter (until the dissolution of their marriage) by or from whatever sources or means shall be considered marital or matrimonial property susceptible to equal sharing upon a dissolution (save only where needs dictate otherwise). A broad summary of the assets and interests of the parties as at the date hereof is set out at Appendix A hereto.”

On the face of the DOR, if the parties were to divorce after 28^th April 2022 (which they are now doing) then the court would pay no regard to the PNA of 2012 and would instead divide all the parties’ assets equally, however and whenever they accrued. Mr Bentham powerfully and persuasively argues that my task is in fact simple, as the DOR intended it to be. I should simply add up the total value of assets and divide by two. The figures are as set out above: £19,952,582 divided by 2 = £9,976,291 (less the later emerging tax figure). The wife should be provided with assets to this value. Mr Bentham has suggested that there could not really be any clearer illustration of the court’s policy to uphold agreements set out in Granatino v Radmacher [2010] UKSC 42 and MN v AN [2023] EWHC 613 than the present case.

Ms Phipps, however, has sought to persuade me that this would not be the proper or fair outcome and I need to consider in some detail the arguments she has raised.

Ms Phipps’ first line of attack was that that the DOR was procured by a deliberate and cynical manipulation of the situation by the wife amounting (in legal terms) to misrepresentation vitiating the DOR. It is suggested that the wife knew from the outset that once she had achieved the execution of the DOR she had pre-determined that she would terminate the marriage and gain monetarily from the better terms produced by the DOR over those included in the PNA. It is said that she had never had any intention to “continue with the marriage” and just pretended to do so in the months leading up to the execution of the DOR and that she cynically attended couples therapy sessions as part of the pretence. The husband has said that the DOR was “the culmination of a carefully orchestrated plan” and that the wife’s “behaviour began to change almost immediately after the ink had dried on the Deed…as if a switch had been flicked”. I read and carefully listened to what the wife said about these attacks on her and read large numbers of contemporaneous messages throwing light on the correctness or incorrectness of these allegations. The wife was absolutely clear that she genuinely hoped the marriage would work up to and beyond the execution of the DOR and, for me, she was absolutely credible in what she said about this and I believed her. This conclusion is entirely consistent with a proper reading of all the contemporaneous text messages and emails I have seen. I am satisfied that she did have a genuine hope that the couples counselling would work. I am satisfied that she did have a genuine hope that the underlining of equality introduced by the DOR would improve the emotional transactions between her and the husband and give the marriage a good chance of survival. I am satisfied that in each case she was disappointed by the events that occurred after 28^th April 2022 as this is not what she hoped for and intended. A very detailed, sustained and skilful cross-examination of the husband by Mr Bentham really, for me, exposed the paucity of evidence which supported the husband’s proposition in this respect. It clearly established that his assertion that the “switch had been flicked” with the signing of the DOR on 28^th April 2022 was unsustainable – a close analysis showed no change in the nature of communications before and after 28^th April 2022.It also exposed the incorrectness of the husband’s suggestion in his Form E and in later assertions than the parties had never lived together after March 2022. Having heard all the evidence, I am quite satisfied that they were living together, sharing a bed and living arrangements together and functioning as a couple into July 2022 and indeed probably into August 2022 when they went on a long overseas holiday together to Bali between 7^th and 30^th August 2022. In my view, although there were difficulties in the relationship in June and July 2022, the tentative decision to separate was not taken until about 9^th September 2022 and even then there was a lack of finality about it. On a close analysis the fact that the wife and children moved into Flat E on 7^th July 2022 was more to do with the planned renovation works at the FMH than the state of the relationship. I wholly reject the husband’s first line of attack on the DOR and deprecate the way he has attempted to cherry pick the evidence to support a case which he knew or ought to have known was unsustainable.

Ms Phipps’ second line of attack on the DOR was that it was procured by undue pressure. Ms Phipps suggested that what happened was comparable with the facts in SC v TC [2022] EWFC 67, where I declined to uphold an agreement entered into at a time when a marriage was in difficulties. But I accept Mr Bentham’s submission that the facts of that case (where a husband suffering from Parkinson’s Disease which caused him to be vulnerable signed an agreement reducing his potential claims to below his needs) are a long way away from the present case where the husband’s needs are not in issue and he has no comparable vulnerability. In the present case the husband was receiving advice from Victoria Francis (now of Newton Kearns, Solicitors) from December 2021 to April 2022. The evidence clearly established that he had been properly advised about the DOR by Victoria Francis and also one of his financial advisers (who both appear to have warned him that what he was doing was potentially disadvantageous), that he had thought carefully about the DOR, that he knew what he was potentially giving away by signing the DOR if there was a divorce (and he knew a divorce was still a possibility) and that he nonetheless made the choice to sign the DOR. He was a mature and experienced businessman, not a naïve ingenue. Although he had suffered two sad bereavements in June and September 2021, it has not been, and could not seriously be, argued that these had the effect of undermining his free will and choice in this matter. Neither the autism diagnosis of 2023 nor the prescribing of Sertraline in 2021 have been seriously suggested as a cause of an undermining of his cognitive functioning or his ability to make a choice. Ms Phipps has said to me that the husband had no choice but to sign the DOR if he wanted to continue with his marriage; but in my view Mr Bentham was correct to retort that a difficult choice is still a choice and that, in any event, there has been no evidence here of the wife ever giving an ultimatum to this effect. By analogy, the prospective wife of a rich man required to sign a pre-nuptial agreement as a pre-condition to a marriage is always under pressure, but as Moor J said in MN v AN [2023] EWHC 613: “that is commonplace and again, cannot be a vitiating factor by itself.” Something rather more is required to amount to undue pressure and, for me, there is nothing in the present case which takes the case anyway near that threshold.

Ms Phipps’ third line of attack was based on the assertion that I should conclude that, on a general analysis of fairness, the fact that the marriage came to an end so quickly after the DOR was signed (on my analysis the gap was from April to September 2022) and that the outcome was so substantially different as between what a court would have done with and without the execution of the DOR that I should exercise my discretion to disregard the DOR completely and fall back on the position as it would have been prior to 28^th April 2022. Her submission is that the existence of an agreement is only part of the section 25 analysis. In this respect she relies on the words of Peel J in AH v BH [2024] EWFC 125 when he said: “There is no doubt that the pre-marital agreement is one of the relevant criteria, but it is not the only one. The terms of a pre-marital agreement must be seen in the context of the section 25 factors. The extent of the weight to be attributed to a pre-marital agreement will vary from case to case”. In my view Ms Phipps’ submission takes Peel J’s observation very much out of context and rather sidesteps the fact that he goes on to note the important status of the Granatino v Radmacher [2010] UKSC 42 Supreme Court decision. I agree with Mr Bentham’s response to this which was to say that a decision along the lines suggested by Ms Phipps would be driving a coach and horses through the ratio of the Supreme Court’s decision. It would be to ignore the important comments about respect for “individual autonomy” and would be a very direct example of the “paternalistic and patronising” stance that “the court knows best” which has been deprecated by the Supreme Court. Whilst it was unfortunate for the husband in the present case that he gave away some entitlements in return for the hope that his marriage would have a better chance of surviving, the fact that his marriage did not survive very long does not change the fact that he exercised his individual autonomy to take that chance. He could simply have refused to revoke the PNA or to revoke it on condition, for example, that the revocation would only be effective if the marriage continued for a set period of time – 5, years, 10 years or whatever; but he never made those choices and readily signed the DOR, notwithstanding its obvious disadvantageous nature to him. It is very difficult to see how the husband can escape from the consequences of his choice, particularly where there is no suggestion of needs not being met as a consequence. The reported judgments where a valid agreement is over-ruled are all (to the best of my knowledge) situations where the needs of one party are not properly respected and met and this does not arise here. This is, in my view, a clear example of a situation where the words of Moor J in MN v AN [2023] EWHC 613 apply: “Litigants must realise that it is a significant step to instruct top lawyers to prepare a PNA prior to marriage. It is highly likely they will be held to these agreements in the absence of something pretty fundamental that vitiates the agreement. These agreements are intended to give certainty. Those signing them need to know that the law in this country will provide that certainty. Litigants cannot expect to be released from the terms that they signed up to just because they do not now like what they agreed.” This applies just as much to agreements entered into in the course of or towards the end of a marriage.

It follows from the above that I agree with Mr Bentham that the existence of the DOR is a magnetic factor in this case in relation to the division of capital.

The wife, at age 43 and with her qualifications, probably does have a reasonable earning capacity for the period up to her state pension age. She is currently working on a part-time basis at a nursery; but there is no reason to believe that she could not (if she so decided) return in due course to full time teaching, earning £40,000 pag or perhaps even a little more.

The wife also receives child benefit and some Disability Living Allowance. Query whether these will survive means testing after my order is implemented.

The husband, at age 70, should not reasonably be expected to take up remunerative employment again and is in receipt of state pension.

Both parties will no doubt wish to deploy the surplus capital they receive as a result of my order in a way which (after their respective housing needs are met) produces an investment income for them respectively at a level which balances their income need and a sensible investment risk. In particular, there seems little sense in the husband not making use of the pension funds he has accrued in his name. There has been little analysis in the hearing before me as to what such incomes might be in the future; but I would be surprised if the husband’s income ended up significantly exceeding the CMS top-up level income of £156,000 pag.

A transfer of the FMH to the husband and Flats E and F to the wife.

A Wells sharing arrangement for the six EIS company shareholdings.

A transfer from the joint assets (mainly the Investment Portfolio) which equalises the assets accordingly.

A discrete division of chattels.

A methodology for sharing the actual amount of the principal sum from the wife’s late emerged tax liability.