NA v MA

This is an application made by NA (to whom, for ease of reference, I shall refer as the Wife) for full ancillary relief after the breakdown of her marriage to MA (the Husband). These parties were married on the 20th June 1998 having cohabited for some 6 years prior to that date. The Wife filed (but did not serve) her petition for divorce on the 12th May 2005. The Husband filed his petition on the 27th May 2005. The divorce proceeded on his petition based on the Wife's adultery. Their relationship lasted some 12½ years. They have two children. E who was born on the 27th May 2000 (6 years old) and N who was born on the 21st May 2002 (4 years old). The children have their main base with their mother and have regular contact with their father.

This litigation has been hard fought and it is obvious to me that much bitterness has been engendered by the disintegration of this relationship, perhaps because these parties were once so close and enmeshed with each other. The cause of much vituperation has been the Wife's adultery with the Husband's best friend which occurred in the latter stages of the marriage. The Husband, perhaps unsurprisingly, has been unable to forgive the Wife for this betrayal. Nevertheless, I believe that this factor has coloured his view of her entitlement for financial relief under the Law.

The costs of this case total some £1.2 million and, whilst I have no doubt that these parties can afford this level of expenditure, it is a great pity that so much of the family assets has had to be expended in this way. It was sad to see these parties effectively flayed through cross examination. I hope that the experience will have a cathartic effect, for the parties need to put this chapter behind them and concentrate upon their future role as parents. Whilst the children remain young, these parties must be able to co-operate for the benefit of E and N. I would hate to think that the children will effectively be made to suffer for the past, perceived sins of their parents.

The bitterness that I have described above has spilled into the litigation and the trial. Mr Mostyn QC for the Husband described it "as the most demanding case in which he had ever been involved". Mr Posnansky QC for the Wife described it as "brutal litigation". No quarter was given and, at times, there seemed to be a lack of basic co-operation to enable the smooth running of the trial. These cases are difficult enough for the parties without additional niggles being caused in this way. For example, I expect Counsel in all cases to co-operate by producing new documents in good time so that opponents can consider them. In other words not produce them with a flourish in Court. I also expect them to meet outside Court each morning (for example at least 15 minutes before the start of the day) to discuss and co-operate about "housekeeping" matters or arrange some other fail safe method. Arriving at Court with a minute to spare and no time to discuss matters can be tactical and I do not approve of the practice as it delays matters.

The original time estimate of this case was 5 – 7 days. In fact, it lasted some 9 days in Court without, as things turned out, allowing any time for Judgment writing. In the main the additional time was required because, during the trial, very serious allegations were made against the Wife's solicitors. Mr Posnansky has described them as a "diversionary tactic" and, whilst this may be an overstatement, the allegations took a great deal of time to unfold and analyse. As my findings will make clear they assumed much more significance than was appropriate. They first surfaced in any clear way during the Wife's cross examination. Indeed, as it was originally put that "the Wife and her lawyers had entered into a strategy", I thought that the allegation was tantamount to some form of conspiracy. I felt it necessary to intervene in order to clarify the level at which the allegations were being put. The Bar Code of Conduct is clear and I did not want Mr Mostyn QC to find himself in any form of personal difficulty. Therefore, I called for the allegations to be put into writing. This led to a clarification of the precise level of accusation.

A central issue in this case is whether the Wife should be held to the terms of what has been referred to as a post nuptial agreement. In essence, it was asserted that the solicitors acting for her at the date of signature had a strategy and had deliberately entered into a course of conduct that would give her an exit route. Some of their actions were not characterised as improper but, as detailed in the written document, some were stated to be "a lapse of professional duty". I deal with the precise allegations below and set out my findings. It is clear, therefore, as Mr Mostyn QC accepted in his final submissions, that the most serious allegations are tantamount to fraud.

I feel that the concentration on this issue (which took at least 2 days of Court time) meant that the parties' advisers began to lose sight of the central issues which are (i) should the agreement be upheld and (ii) if not, what is the level of fair award. I note, for example, that no detailed figures were given in Mr Mostyn's written final submissions: in his, Mr Posnansky referred to and adopted those in his written Opening

The Wife seeks some £13.6 million on a clean break basis made up as follows:-

The Husband asserts that the Wife's claims should be limited to the terms of a post nuptial agreement that was signed by the Wife on the 9th March 2005 and, as I find, by the Husband on about the 25th April 2005. The relevant terms of that agreement are that the Wife's claim should be limited as follows:-

The issues which fall to be determined by the Court are as follows:-

One of the central issues in this case is whether a post nuptial agreement signed by the Wife on the 9th March 2005 (which limits her claims) should be enforced by this Court. Accordingly, before I consider the facts, I will outline the current legal position in relation to contracts between spouses.

It is an accepted fact that an agreement entered into between Husband and Wife does not oust the jurisdiction of this Court. For many years, agreements between spouses were considered void for public policy reasons but this is no longer the case. In fact over the years, pre nuptial "contracts" have become increasingly common place and are, I accept, much more likely to be accepted by these Courts as governing what should occur between the parties when the prospective marriage comes to an end. That is, of course, subject to the discretion of the Court and the application of a test of fairness/manifest unfairness. It may well be that Parliament will provide legislation but, until that occurs, current Authority makes it clear that the agreements are not enforceable per se although they can be persuasive (or definitive) depending upon the precise circumstances that lead to their completion.

In Edgar v Edgar [1980] 1 WLR 1410, as Ormrod LJ, with whose judgment Oliver LJ agreed, said, at 1417C:

I accept that these are succinct and proper formulations of the test to be applied.

Munby J in X v X (Y & Z Intervening) [2002] 1 FLR 508 at page 536 summarised the following propositions as relevant:

It is the Wife's case that she should not be held to this deal because she was improperly pressured into signing it as a result of her Husband's conduct over a period of about 3 months. The formulation per Ormrod LJ is "undue pressure". It is the Husband's case that the test should be akin to that of undue influence in civil cases.

In RBS v Etridge (No 2) [2001] 2 FLR 1364 Lord Nicholls stated:

This is a fair formulation to enable the assessment of any given set of circumstances. However, in a case involving a Husband and Wife where it is clear that interdependence and mutual influence are the basis of the relationship, I consider that the Court has to take special care when assessing the manner in which each party's conduct affected the other. For example, if a wife has been accustomed to placing reliance upon her husband's decisions she might be much more easily influenced than an individual in a commercial transaction.

In Etridge Lord Nicholls stated at 1368:

Clearly, this statement of law requires some modification for the special relationship between spouses that I have outlined. Nevertheless, I am clear that, to overturn the agreement, I have to be satisfied that this Wife's will was overborne by her Husband exercising undue pressure or influence over her.

I am also clear that if I do not overturn the agreement per se, I still have to consider whether it is fair and should be approved so as to become a Court order.

It is Mr Mostyn QC's submission that the Husband did nothing unlawful in this case. He simply gave his Wife a very tough choice. Its terms were: sign the agreement or the marriage may come to an end. That in itself, he submits, cannot be characterised as undue pressure.

I will now set out the relevant facts as I find them. For the avoidance of doubt, insofar as the matters set out differ from the evidence of the Husband, the Wife or any of their respective witnesses, this is because I have preferred the evidence of another or because I consider that the documents produced confirm my finding of fact.

The Wife was born on the 9th October 1971 (now 35 years old). She is an only child of her parents' marriage. Her father worked in the Hotel trade and so, as a child, she lived an international lifestyle because her father moved from one country to the next. Her own early family life does not appear to have been happy. At the age of about 18 years, she went to Switzerland to study at a hotel school but left after only 2 years without completing the course.

The Wife's upbringing left her with a somewhat fragile personality and it seems likely that, from a young age, she had to develop strategies to cope with family strife.

The Husband was born on the 18th July 1975 (31 years old). He is the younger son of Mr AA who was Lebanese and his wife BA who is German by birth. The Husband has one brother (L) who is some 5 years older. AA was a brilliant entrepreneur who started his business in 1948 providing catering services for the I P Company. That business grew, developed and proved to be highly successful. AA's two brothers (EA and JA) joined him in the enterprise although EA did not remain. As the business became international it was operated through an entity called the AA Corporation ("AAC") which was incorporated in 1979. This was, in turn, owned by trusts/Foundations.

AA did not marry until a relatively stage in his life and there was a 20 year age gap between him and his spouse.

The parties met through a mutual friend in 1992 when the Husband was 17 years old and the Wife was 21 years old. The attraction was immediate and they soon became inseparable. The Husband invited his new girl friend to attend a wedding in the Lebanon and, upon her return from that visit, she developed Hepatitis A (caught from food). She was seriously debilitated by the illness and was invited to move into the A home where she could be cared for in the expectation that she would recover soonest.

The A family were fortunate to have a General Practitioner who was on call on a 24 hour a day basis. His name was Dr B. He had been placed on a generous retainer by the family some time in about 1990. He took care not only of the family members but also of their domestic staff and their London based employees. He soon became a trusted confidant, adviser and friend to the entire family. The result was that he had an intimate knowledge of all family members. He told me that he was accustomed to dining with one or other as often as twice a week. It was his evidence (which I accept on this point) that, from his observation, the family was dysfunctional.

The Wife soon recovered but remained in situ. It was agreed that she would give up her employment and she soon became an integral member of the household, wholly dependent upon her boyfriend and his family for financial support and emotional succour. I have no doubt that she was given everything that she needed or wanted but, in return, she lost her entire independence. She soon found that she was required to support her boyfriend in the various, stressful family situations which occurred quite regularly. The young couple each acknowledged that they had suffered as a result of family problems and, because each of their parents had committed adultery, they promised each other that this would not happen in their relationship.

I have no doubt that they were soon inseparable and mutually interdependent. However, by 1994, the Wife found the situation so overwhelming that she sought assistance from Dr B for some form of depression. He prescribed Prozac and sent her to an eminent Consultant Clinical Psychologist. The Wife was complaining about stress levels within the household and her lack of independence. She also gave details relating to issues which stemmed from her own background. A number of letters from the Consultant feature in her medical notes. They set out the details of her contemporaneous complaints and worries. Needless to say, they only reflect her perception of the difficulties and I have not thought it appropriate to concentrate upon these matters and so make no findings upon whether she was justified or not. However, what is abundantly clear, is that the young couple were deeply in love and, whatever the problems, the Wife genuinely believed that "love would conquer all". I understand that the Husband also became the Consultant's patient for a period. But nothing turns on these early events.

The parties married in 1998 but remained living in the A household. Later that year AA died. By that time, the business (which was owned through a sophisticated web of offshore entities) had a turnover of some $1.2 billion per annum, had some 30,000 employees and operated in 30 countries worldwide. The 2000 group accounts refer to 114 subsidiaries, 8 associated companies and 25 partnerships. On the 11th September 2000, Credit Suisse First Boston valued the Group at between US$459 and US$509 million.

AA's majority share (being some 84.8%) in the overall business was ultimately held in/through the A A Foundation (AAF) based in Liechtenstein. Some 15% of the business was held on behalf of his brother JA (and his family) in the J A Foundation (JAF).

At AA's death the assets of his Foundation fell to be divided so that his widow received 20% and each of his sons each received 40%.

As AA grew older the profitability of the group began to decline because some ventures caused major losses and margins were decreasing. Despite this, the group remained successful. It seems clear that the continued prosperity of the business was dependent upon the skill of AA. In 1999 the companies produced a profit of US$2.1 million (which in itself was a reduction) but by 2000 the losses totalled US$9.1 million and by 2001 the losses were US$23.6 million.

It soon became apparent that high scale losses could not be maintained. It was therefore decided that the business should be managed by a professional team and groomed for sale. In order to make this possible the group was divided into 5 Guernsey companies which, for ease of reference, are referred to as the BDCs. Eventually, the most profitable parts of AAC were sold for approximately US$400 million of which some 84.8% was due to AAF. The Foundations terms, as I have already stated, were to the effect that its assets should be divided as 20% to the widow and 40% to each son. However, shortly before his death, AA wrote a letter of wishes to the effect that, if the businesses were sold, then the first £105 million should be divided as to one third to his widow and the remainder between his sons. In effect, this produced an equal division of that sum. The figures meant that the widow received about $14 million more than her original entitlement. Her sons were angry that she should benefit in this way. The Husband informed me that this issue meant that his mother has been disposed to "lend" this sum (i.e. $7 million) to each son. However, in the light of the history and the evidence that I have heard I believe that "loans" at this level will be forgiven. Apparently, L has already received "his" $7 million.

The result of the re-jigged division meant that, in round terms, the Husband's 40% share of AAF was US$124,000,000 (after professional costs).

Some of the assets originally owned within AAC remain to be sold and so future distributions will be made. I shall deal with this aspect of the matter in more detail below.

It might have been thought that the loss of AAC would have brought an end to family hostilities but this was not to be. The JAF (JA's Foundation) brought arbitration proceedings in France (applying Liechtenstein Law) against this branch of the A family alleging loss resulting from (i) mismanagement and/or gross negligence; (ii) unnecessary expenditure incurred by AAC in its break-up; (iii) disposal of operations at an undervalue; (iv) fraudulent events; (v) the reconstruction into the Guernsey companies and (vi) lack of information. These proceedings have been on–going for some years.

The current situation is that the French Tribunal have struck out the personal proceedings against the Husband, his brother and mother although that ruling is the subject of appeal. In the foreseeable future there is a further first instance judgment due at which a strike out of the entire proceedings will be adjudicated. . The situation remains to be resolved.

After the death of AA there can be little doubt that the next few years were very stressful. Despite these ifficulties, it seems that the Husband and Wife continued to operate as a very successful team until the birth of their first child, E, who was born in May 2000. It is the Wife's case that their relationship began to deteriorate from this time onwards because she felt increasingly isolated and unappreciated. Of course, the birth of children can often lead to new strains within a marriage. But in this case those troubles were coupled with business problems and difficult extended family dynamics of epic proportions.

The Husband had hoped to continue running AAC. Therefore, its eventual sale and the loss of guidance from his much loved father must have caused him numerous emotional difficulties. Neither party can be blamed for their individual failings within this period. The Wife was devoted to her son and, upon her arrival, her daughter. The Husband was doing his best to resolve the grave crisis within AAC and the wider family. But, with hindsight, the marriage began to drift. This was particularly sad because each needed the other so much.

In 2001, having received his (much reduced) inheritance, the Husband decided to start his own businesses. Since that date, he has invested some US$78 million in the MA Restaurant Corporation (ZZZ), VH Limited (Dubai operations), ZZZ Fine Wines Ltd (previously the N Group) and ZZZ U.S.A.

It was his dream to emulate his father in the catering world by establishing, inter alia, a chain of fine dining restaurants in the UK and USA, a fine wine wholesale business and a catering enterprise in Dubai. Of course, he did not have his Father's expertise or experience and, as a result, he has made many mistakes. Presently, I understand that the businesses are losing either $500,000 or £500,000 per month (figures vary in the papers). I have been told that he has plans to rationalise the business but he will need to act very quickly if it is to survive. To date, as I find, he has lost at least £20 million in these ventures and it may well be a great deal more.

The Husband has employed what he considers to be a talented team at head office. In broad terms the business operates some 5 restaurants, a wine wholesale and a food distribution business. He now has some 550 employees in 3 centres of operation. His initial venture was to purchase O Club which operates from a large town house in a London Square. This dining club has been established for many years but had had a number of owners. The Husband purchased the "business" upon the basis that he had a licence to use the building and an option to purchase (for up to £2 million) a controlling interest (having already bought some 25%) in the underlying company which held a 15 year lease from the Grosvenor Estate.

Next, he bought the G Restaurant in Mayfair and then started a new Japanese Restaurant called U. Whilst undertaking these ventures he travelled to America and started two new ventures. The first is a restaurant called G, which is a mid-price venue in Greenwich, Connecticut. The second a restaurant called V in central New York City. He also invested in excess of £12 million in fine wine. His venture in Dubai consists of a food/wine supply business and the franchise rights for American style diners which he hopes to roll out in at least 3 Gulf States.

It is clear that the Husband was soon pre-occupied with these various ventures. The Wife wanted to become involved in them and did assist in a general way by being concerned with some interior design decisions. However, I do not have the impression that her involvement was other than peripheral. I am sure that she did her best to assist but her main focus was caring for the children. It is accepted by all that she is a good and committed mother.

I have the impression that this couple used their involvement with the various restaurants as an adjunct to their social life. They visited and used them regularly. However, I do not have the impression that the Husband was able to exercise any real professional grip in this very competitive trade.

I am clear that they lived a very lavish lifestyle. A print out shows that, in 2003, some £1.22 million was expended upon their lifestyle. This included some £337,000 on staff; £18,000 on flowers; £44,500 on food (apart from restaurants); £36,800 on travel; £118,000 on credit cards and £450,000 on "miscellaneous". In the context of their wealth (even though it was then in excess of £60 million) this was unbridled extravagance. I note that they had 2 housekeepers, 2 cooks, 2 drivers and a nanny. Food was flown in from abroad to cater for their individual needs. They travelled on private jets, holidayed in the best hotels and, in short, had the best that money could buy. I expect that this simply marked the continuation of the type of life that had been enjoyed when AA was alive. However, he was a successful entrepreneur with a multi-national business which created substantial profits. He may have been able to afford an amazing level of luxury but the same was not true for this Husband or Wife. I do not seek to criticize this couple for the way in which they lived; I simply consider that it was rather short sighted and immature. It does not seem to me that it could be afforded in the long term (unless the Husband's business ventures proved to be a great success). Therefore it was, as I find, inevitable that this type of life would have had to be moderated in time.

By 2004, the marriage was in serious difficulties. The Wife was writing impassioned letters to the Husband. She described him in glowing terms but I consider that these letters were cries for help and understanding. It is not surprising that they were written in a flattering way because she wanted his attention and assistance. She told me, and I accept, that the letters were written because she felt that they were the only way that she could communicate with her Husband. Unfortunately, the underlying messages went unheeded. I am not ascribing culpability to the Husband because I do not believe that he was emotionally equipped to sympathise or empathise with her. But there was a failure of understanding and a crisis was looming. In the summer 2004, the Wife went to see Dr B (whom she also regarded as a trusted friend and confidant) and revealed her level of unhappiness to him. She indicated to him that she was considering a separation. It does not seem that the level of her distress was communicated to the Husband by him.

The result of the Wife's unhappiness and the Husband's failure to pick up the clues led to her seeking comfort from a Mr Y. He was the Husband's best friend and he worked as a trusted employee at Head Office. The relationship deepened and the Wife, who I find was vulnerable, transferred her need for attention and affection to him. They began meeting in secret and were in constant communication. They spoke on her mobile phone and sent texts to each other with amazing frequency. I have been told that, at its peak, some 150 – 200 texts a day passed between them. Long telephone calls were made in which they engaged in sexual fantasies and the like.

The Wife has described herself as living in a "golden cage". She was surrounded by staff – who owed their ultimate loyalty to her Husband – and one, Mr Az, noticed the unusual use of her mobile. He determined to discover what was afoot. It was her custom, each evening, to give the phone to him to be charged. He decided to read the in-box of her text messages. He found that the content was sexual and compromising. He decided that he would gather evidence to support his belief that the Wife was having an affair. He also took this information to Dr B and paid a special visit to the doctor to discuss matters. I accept that he went to a shop in Kilburn Lane and paid £450 for a device with which to "bug" the household telephone. He then placed it on line 5 (the "default" outside line on the home exchange) and, as a result, recorded numerous compromising calls between the Wife and Mr Y. The cost of the device was equivalent to his net pay for a week. He said that he paid for it from his personal resources. I cannot make findings about this aspect of the case because it was not investigated further. Dr B continued to be involved on a regular basis and, once all the information in the form of tapes had been collated, Mr Az gave his information to the Husband on the 9th December 2004.

On the previous day, the 8th December 2004, the Wife had been to see Dr B (she used to attend regularly for thyroid checks). He described her as extremely buoyant and very glamorous. She told him that she had never felt more in control of her life. I accept that description. Of course, she was in the midst of her affair with Mr Y. Dr B also knew this fact but he did not tell her that he had receiving regular information about her affair or that she was still being monitored by her chauffeur, Mr Az.

It seems that the Husband was given Mr Az's information in the morning. I accept that it was devastating proof and, at first, he could not absorb the information. He told me, and I accept, that on that day he did not feel that he was living in the real world. His immediate reaction was to go and see his friend Dr B. I have already pointed to his friendship with the family. By this date he was godfather to both children and spent long periods with the family at weekends. The doctor was also in debt to the Husband for the latter's previous financial kindness. In particular, Dr B told me that the Husband had given him £32,000 (about one month's earnings) when he suffered a personal bereavement that required a good deal of his time. He had also engaged in share trading with the Husband and the latter lost approximately £147,000 as a result of the doctor's introduction. Of course, the doctor was also on an annual retainer (apparently, equivalent to about a month's salary).

The Husband considered him a trusted confidant and wise man. He was, as I find, from the outset wholly supportive of the Husband and his cause. It was to the Husband that his first and only loyalty lay - not only because he relied upon the Husband for a part of his income but because he enjoyed the lifestyle add-ons that came with being his friend.

The Wife also considered Dr B to be a trusted adviser. From her perspective this was unfortunate because she did not appreciate that he was not and, as I find, was never going to be, even handed.

Dr B described the Husband as looking like a "wounded animal" when he saw him on that morning of the 9th December 2004. I accept that description. The Husband could not believe what he perceived as the Wife's ultimate treachery with his best friend. He felt that the two people, whom he had trusted the most, had betrayed him in a most fundamental way. I think that he had good reason to have these feelings. When he visited Dr B he told him that the marriage was over because he could never forgive the Wife. It is Dr B's evidence that he tried to calm him down. Of course, the doctor was not really surprised by the revelations as he already knew of the affair through the information that Mr Az had collected.

The Husband told the doctor that he wished to go to see DS (his commercial solicitor) immediately. Although he had access to a driver, it was agreed that the doctor would drive him. The two men saw Mr DS on that day. I note that no reference was made to this first visit in the doctor's affidavit and the evidence only emerged in the witness box.

They both sought to persuade the Husband that he should not make a snap decision as there might be a way to mend the marriage. I am clear that, on that day, the Husband was convinced that the marriage had to end and could see no other way forward. The Husband then travelled to his office and arranged to see Mr Y in Berkeley Square. The latter denied the affair and the Husband indicated that he accepted the explanation because he wanted to believe him. However, as he drove home, he realised that there was no truth in the denial.

He tackled his wife about her actions. She denied it until she was presented with all the evidence. When there was no alternative, she accepted that there had been "one act of adultery". I consider that she sought to minimize the affair and I have little doubt but that there were more acts of adultery than she was prepared to admit. Despite this, she was, I accept, extremely remorseful and stated that she would do anything in her power to save the marriage. She was mortified by her behaviour and could not explain the reasons for her affair.

She soon realised that the Husband wanted to leave her and considered the marriage at an end. She was extremely distressed by this state of affairs. I am clear that she was unable to think straight as she was consumed with guilt. She felt that, as everything was her fault, she had to do anything and everything in her power to placate her husband.

On that day the Husband found it impossible to come to terms with her admission. He sought full explanations for and details of the affair which she could not give. I doubt that she had a clear understanding of her own motivation and was reluctant to give him the full details because she knew that this would only fuel his anger. I am sure that both of these people were in melt down on that day and did not know where their future lay.

The Husband continued to be beside himself with anger and disappointment. He did not think that he would ever be able to forgive the Wife. I am sure that his explanation of his first reaction was accurate and I find that, in reality, he has never been (and will never be) able to forgive her.

The Wife wanted to save the marriage and her family life not only for herself but, more importantly, for the children. The Husband was the dominant partner in this relationship. Dr B told me that over the years the Wife had became more assertive because, as he put it, she had become accustomed to getting her own way within the household. He felt that the Husband was reactive to situations but I do not accept this description of the dynamics. The Wife had been wholly dependent upon the Husband for about 12 years, she was (and is) a much less forceful character and she was accustomed to taking a placatory role within the family. At this time, she knew that she was wholly in the wrong and that her only chance of saving the marriage was to plead for the Husband's forgiveness and take such actions as he required if he was prepared to enter into some form of reconciliation.

Like her Husband, the Wife sought the counsel of Dr B. She thought he was an honest broker in the situation. But she did not know of his role in the discovery of her affair nor, more importantly, of his visits to Mr DS, with the Husband. He never gave her this information. The doctor decided that he would be the Husband's counsellor and mentor in this situation. He told me that he wanted to save the marriage if that were possible. I accept that evidence but I am equally sure, as I set out below, that he wanted to protect the Husband if no reconciliation proved possible.

The Husband is described by Dr B as angry, dogmatic and emphatic about the affair during this period. I accept that description but do not think that it goes far enough because, having seen him give evidence, I consider that the Husband was consumed with general anger, upset and grief about his marriage. He could not forgive his wife for her betrayal and he was absolutely furious with her.

The Husband saw Dr B regularly. In fact, the doctor was spending so much time on these matters that the other partners in the practice told him to keep a record of the time in case their profits suffered. After a few days, Dr B said that he was able to convince the Husband that there might be a way forward if the Wife were prepared to enter into an agreement. I do not believe that initially the doctor saw this as a separation or post nuptial agreement in legal terms. I accept that it is more likely he saw it as a basis for setting out the terms of reconciliation.

The Husband told me that he was afraid that, if he invested emotionally in reconciliation, the Wife might later resume her affair with Mr Y. If she did, he did not want to find himself in a position where Mr Y was living in "a house which [he] had provided, living full time with [his] children and living on [his] money". If he could, he wanted to make sure that this did not occur.

At some stage, he told Dr B that he would consider a reconciliation if the Wife agreed to 3 conditions:

I consider that the first term was reasonable (indeed essential) if the marriage was to survive. The second term was less reasonable because it had the effect of isolating the Wife from a supportive friend. I deal with my view of the third condition below.

In the light of this, the two men visited Mr DS on a second occasion on about the 16th December 2004. At this meeting it was decided to draw up a formal agreement. Dr B told me that he only remained in the office whilst a general discussion took place and was not there when the financial terms of the agreement were discussed. I do not accept his evidence on this point. I believe that he was a crucial part of the team and a valued adviser. I believe that he has only sought to distance himself now because of his role with the Wife in the later negotiations and the problems that he is facing as a result of the Wife's complaints about him to the GMC.

The Husband told me that he was really only interested in the terms relating to the children as he wanted them to spend 50% of their time with each parent. Whilst I am sure that he wanted to secure a proper division of time, I am convinced that the financial terms became increasingly more important, indeed crucial, to him. By the time the agreement came to be signed it was only the financial terms that really mattered.

The Husband told me that the financial terms were discussed with Mr DS and they decided upon the figures without reference to any detail but simply on the basis of what the Husband considered to be fair and generous. Thus, they alighted upon £3 million for housing and a monthly payment of £20,000 for the Wife plus a total of £10,000 per month for the children. If this description is correct, and I have no reason to doubt it, the figures put forward did not represent any careful consideration of what might be appropriate or needed. They only represented what the Husband was prepared to pay. It was that simple. Apparently, there are no notes of the meetings which took place with Mr DS because, it is said, they were undertaken on the basis of friendship and the relevant file is missing. I am surprised by this but take it no further.

Dr B states in his affidavit that he "enquired just to be 100% sure on my own behalf that his [i.e. the Husband's] intent was not to get [the Wife] to sign a financial agreement and then divorce her, leaving her disadvantaged". When I asked him how he gathered that she would be disadvantaged he said that he just presumed that this would be the case. I do not accept this evidence, I consider that he knew there was disadvantage because he was fully aware of the Husband's attitude and knew the terms that were being offered.

I am clear that the precise terms were devised for two reasons. First, because it was perceived that the Wife would be more likely to remain within the marriage if she appreciated that, on exit, she would have considerably less than she was accustomed to or needed. Secondly, if she did leave then she would receive less than her entitlement under the Law with the vital knock-on effect relating to Mr Y which the Husband considered to be of critical importance.

As the Husband knew (or ought to have known) the precise costs of the family's lifestyle, he appreciated that the proposed deal did not represent a generous proposal. I am clear, and so find, that Dr B also knew that the deal was ungenerous and understood its purpose.

Mr DS decided that the agreement should be drawn up by a matrimonial specialist and contacted Mr Z to book an appointment on the 16th December 2004. He also understood that the Wife would need independent legal advice and considered that Mr V of Messrs U and Co was the ideal candidate for the job being a man of long experience. The Wife was told that she should go and see him. She was not given any choice in the matter (not even a list of potential candidates). She simply did as she was told and agreed to attend Mr V.

The general terms for a reconciliation were conveyed to the Wife by the Husband and she agreed that she would "do anything" to save the marriage. I am clear that she knew, from the Husband's tone and anger, that signing the agreement was an essential pre-requisite to the marriage continuing. As she wanted to remain married, she was immediately subject to what I find was intolerable pressure at a time when the whole structure of her family life had disintegrated even though this was as a result of her own actions. She felt very guilty and I have no doubt that her guilt was used against her on a regular basis. The Husband has accepted and, I so find, that he regularly brought up the subject in arguments. I also have no doubt that the Wife was worried about her own future but, more importantly, she was worried about her children and how any separation would impact upon them.

The appointment with Mr V was fixed for the 22nd December 2004 and the Wife attended. The detail of that meeting is dealt with in another part of this Judgment.

The Husband told the Wife that she had to "take a leap of faith" and sign the deal to save the marriage. I am clear that the Wife had no real knowledge of finances. She was simply accustomed to spending as she chose and she did not know what it would cost to run her own life. As far as she was concerned she trusted her Husband on financial matters. She had never had to budget or consider the detail of any financial package. Both the Husband and Dr B have given evidence that she said that the financial deal was "generous" and that she said that she "did not want the Husband's money". I accept that she may have said these things even though no clear date has been put upon her utterances. However, it is obvious to me that she had no idea what she needed and I therefore discount the reliability of her perception of the terms as actually being generous. I do not think that she had the information or knowledge to judge. Moreover, she was unable to concentrate upon such matters as her state of mind was in such flux.

I was troubled by the continual reference to requiring the Wife to take a "leap of faith by signing the agreement" as it seemed to me to be illogical phraseology. I have no doubt that it was said to the Wife very regularly and she was made to feel that signing the agreement would be an act of good faith but this was not the true meaning of the phrase. I come to the conclusion that it only makes sense from the Husband's perspective, when consideration is given to his mind set and his knowledge that it substantially limited his financial liability to her. From the Husband's point of view, there was no point in having a financial agreement unless it confined the wife's claims particularly given his view that he did not want Mr Y to have access to his capital. It also had the advantage that it subjected her to a measure of continued control through the payment of maintenance if the marriage did break down. The Wife probably saw the phrase in terms of putting her trust in the Husband to be fair but, in that, she was sadly mistaken.

In December 2004, on Dr B's recommendation, the Wife was referred to a counsellor/psychotherapist called Mr K. She saw him for the first time on about the 15th December before, it would seem, the precise terms of the agreement had been formulated in Mr DS's office which, as I have found, occurred on about the 16th December.

In his affidavit (and confirmed in his oral testimony) Mr K reports the Wife as saying to him "since the discovery [of the affair] her Husband had become emotionally abusive towards her and he was playing mind games in order to manipulate and control her. She felt that she was being put down at every level. She told me that her Husband was unable to forgive her and wanted to punish her by making her feel guilty about her actions".

He reported that a constant theme at their weekly meetings was her wish for the marriage to continue. Whilst the therapist wanted to concentrate on the difficulties within the relationship the Wife repeated that the Husband was primarily interested in her signing the agreement. She continued to be consumed by guilt and shame. She repeatedly told Mr K that she would do anything to make the marriage work.

Mr Z saw the Husband on the 17th December 2004 and he prepared a first draft of the post nuptial agreement. It is no part of this case that Mr Z assisted with devising the basic terms. Thus, no matrimonial expertise was employed in assessing the figures.

At some stage, the dates of which are unclear (other than they were early in this process), Mr K held two meetings with the parties and Dr B (who was now acting as the Husband's "therapist"). Mr K reports that the Husband was dogmatic and agitated. He said that the Husband made it clear that there was no scope for compromise "until the paper was signed". Dr B agreed that the Husband was agitated and dogmatic but he thought it was in relation to the affair not the agreement. I consider that Mr K's version is correct. Even by this early stage, the Husband was insistent upon the agreement because he had already rationalised that it would protect him, particularly if the marriage did not survive.

Mr K told the parties that he feared that the paper signalled the ending of the marriage. This advice was ignored. He describes the Husband as rigid in his demands, emphatic and angry. I accept that evidence. The Husband stormed out of the second meeting when Mr K tried to suggest that his own behaviour might have led in some way to the Wife's adultery. Dr B said he felt it was too early to ask the Husband to deal with this type of issue. He may be correct in that analysis. Nevertheless it is a graphic illustration of the fact that the Husband would countenance no viewpoint but his own. If he was prepared to walk out of a professional meeting (which was attempting to further the reconciliation process) I am clear that his behaviour at home was likely to be much more petulant if matters were raised that he did not like. He was accustomed to having his own way and I accept the Wife's version of their home life during this period to the effect that he was absolutely insistent that the agreement be signed and would not listen to her view point on various issues.

Mr K told me that the Wife wanted to spend most of the time at each session speaking about the agreement. He reports her as saying "she was being put under extreme pressure by her Husband and made to do something she did not want to do, but felt helpless. For the majority of the time, she was in a terrible state and I feared that she was close to a nervous breakdown. She was physically exhausted and emotionally drained. She told me that she believed that the staff at her home were spying on her.....". I accept this evidence as an accurate record of what took place at these meetings and the Wife's physical and mental state at that time. I am clear that she was increasingly worn down and overborne by the Husband's recriminations and insistence that the only way forward was her signature on the agreement. I accept that, even before a draft was in being, he told her it must be signed and be signed quickly.

On the 23rd December 2004 (the Wife having seen Mr V the day before) Mr Z sent the first draft of the post nuptial agreement to the Wife's solicitors. Of course, all this happened within 2 weeks of the discovery of the Wife's adultery when emotions were raw. Both parties, but particularly the Wife, were truly vulnerable. The financial terms were £3 million as a housing fund (with an indexation clause) and maintenance at the rate of £240,000 per annum for the Wife, "payable monthly in advance during joint lives or [the Wife's] remarriage" (I note that the terminology is in line with an order for periodical payments). In addition, maintenance for the children at the rate of £60,000 per annum for each until 18 years or the end of full time secondary education. All maintenance payments were index linked. These terms never altered. There were three clauses in relation to the children.

Given the timing of Mr. Z's correspondence, nothing happened before Christmas. The letter which enclosed the first draft referred to the document as a "pre- nuptial" agreement. Of course, it was not. It was not prepared with a marriage in mind but it was prepared with possible divorce in mind. If this had been a pre nuptial agreement, it would have stood the best chance of being enforced if there was (i) full disclosure, (ii) a proper period for reflection being at least 28 days prior to the marriage, (iii) proper independent legal advice with proper negotiations with (iv) no children born after marriage. (See the Green Paper "Supporting Families").

The parties spent Christmas at home with their children and then travelled to Megeve where they stayed for a short period. This was not, as I find, a happy period. Although there were periods when the tension lessened, for the most part the parties were arguing and the Husband raised the Wife's adultery on a frequent basis. Neither party was able to function at their best. In particular, I find that the Wife's state of mind worsened as she was isolated and alone. There were no signs of forgiveness from the Husband and he maintained pressure upon the Wife to comply with his demand that a post nuptial agreement be completed.

After the holiday, the parties returned home but family life was not back to normal because the Husband still found it impossible to forgive her. For a period she kept to the first two conditions that the Husband had stipulated but, in January 2005, she resumed contact with Mr Y. Her mother gave her a new "pay as you go" mobile phone and she used her computer to send e mails. She met Mr Y in Harvey Nichols for a short period.

In mid January the legal process recommenced. A second draft of the agreement was sent over by Mr Z on the 17th January 2005. The important financial terms remained exactly the same. The terms in relation to the children were drafted more precisely although they were broadly similar. They stated as follows "[The Husband] and [the Wife] agree that the children of the family will reside with each parent on alternate weeks with daily contact to the parents with whom the children are not currently residing save for such holiday periods as are agreed between them" and "[The Husband] and [the Wife] agree that [the Wife] will purchase the home referred to in clause 10 within approximately 3 miles of the school which the children attend unless otherwise agreed in writing". It was also stipulated that they would discuss and agree the children's schools.

By the 28th January 2005 Mr Z was writing "It is important for this couple to reach agreement. Therefore can I please hear from you urgently in relation to my second draft of the document". This note of urgency was, I have no doubt, at the Husband's behest. Of course, Mr Z appreciated that, for the agreement to have any chance of success, it should not be signed until the Husband's disclosure had been made available. Thus this draft was not yet capable of signature but the message was clear. The Wife informed me that the Husband constantly berated her to sign. I consider that this letter is a reflection of his persistence even with and through his own legal team.

On the 15th February 2005 Mr V wrote to Mr Z. In that letter he said "As you know, my client has been reluctant to sign this agreement from the outset. She does not believe that, given the current difficulties in the marriage, signing a post nuptial agreement is the best means of resolving these difficulties. She has reluctantly agreed to sign the agreement after many lengthy discussions with your client about how they can resolve the current situation. However, she has agreed to sign the document very much as a last resort. For this reason, I would like the words "without any undue influence or duress" deleted". It has been asserted on behalf of the Husband that this paragraph in the letter was added as part of the exit strategy devised by the Wife's advisers but I do not accept that submission. I accept the Wife's solicitor's evidence that it was written because it was a true reflection of the Wife's position. The letter also included a number of rather mild requests for information and explanation. This letter crossed with one from Mr Z asking for a response to the draft agreement.

The Wife's evidence is that, when the Husband heard about the letter of the 15th February, he was very angry and told her that she was not to ask for any further information but was just to sign. In a conversation with her solicitor the next day she referred to things as being "very bad at the moment" and the attendance note refers to her as sounding "quite shaken" and as "having been ordered to phone us by H, to tell us to stop asking H for disclosure….. as you should trust his figures and not ask for any more information". I accept the Wife's evidence that the Husband was continually putting her under intolerable pressure to sign. I accept that she was being accurate when she informed the solicitors that she had been "ordered" to telephone them to pass on the message that is outlined above. I have no doubt that the Husband's attitude put her under continuing, unacceptable and undue pressure.

On the 21st February the Wife phoned her solicitors again. The attendance note of the phone call details her as being "in a very bad state and very weepy". She said that her Husband had "gone berserk when he saw a copy of our letter …. He has told you that the marriage is over, you were meant to just sign the document not negotiate it". I accept this passage is an accurate record of what was said and that the Wife was being accurate in her reportage of the events between herself and the Husband. The note also includes the following passage "You said that you were only signing the document because of the children. You said that this morning H telephoned you from another phone in the house and provoked you to tears while you sat with your daughter in your lap. He does not know when to stop and will shout at you and make you cry in front of the children". I accept that this conversation has been accurately recorded and once again shows that the Husband was placing the Wife under undue, unacceptable and intolerable pressure.

The disclosure of the Husband's means (described as a "broad breakdown") was sent over by letter dated Thursday, 24th February 2005. The schedule showed his assets to be in the region of £60 million. The former matrimonial home was valued at £6.5 million gross less a mortgage of £3 million. Mr Z indicated that the figure of £3 million in the agreement given for the Wife's housing fund "corresponded to approximately half the gross value of the matrimonial home". As we now know this was, in fact, a serious underestimate as the house eventually sold for some in excess of £8 million.

In the letter of the 24th February 2005 Mr Z stated it was totally unacceptable to delete the words relating to undue influence and duress. He pointed out that it would be entirely inappropriate to allow the respective clients to sign a document if there was any suspicion of undue influence or distress. He retorted "My client is not putting your client under any duress or exerting undue influence". I do not consider that he was in position to make that statement given that he was not in the parties' home nor privy to any of the distressed telephone calls she was making to her lawyers. Consequently, I do not consider that this paragraph assists me in the overall determination of the issue of undue pressure or undue influence.

In February 2005 the Wife informed Mr K about her meeting with Mr Y in Harvey Nichols. He contacted Dr B because it had been agreed that she would only continue her therapy on the basis that she was not involved with him. Dr B gave instructions that it was proper for the therapy to continue. I do not know and so cannot make any findings as to whether this information was communicated to the Husband.

It is the Wife's case that "Throughout January, February and early March, the Respondent bullied and harassed me on an almost daily basis. The pressure was unrelenting, intense and debilitating. On some occasions I told the Respondent that I would sign the Agreement because he would wear me down and it was easier to say that in order to avoid arguments and tension. ….. if I refused, then that was the end of the marriage. ….. if I signed the agreement, he would consider reconciling with me; if not, then our marriage was over." I accept this evidence in its entirety.

I am sure that the Husband made it clear that there was no prospect of a reconciliation unless the agreement was signed. No reconciliation would signal the end of the marriage. Continual threats and bullying of this nature amounted to undue and unacceptable pressure because it meant that the Wife could not think logically. I think that the Husband's behaviour affected the Wife's ability to make clear, calm or rational decisions and so, as I find, her will was overborne.

During this period the Wife continued to see Dr B. In his affidavit Dr B states "I did say to [the Wife] that the Husband] saw signing the post nuptial agreement as good faith. I did also say to her that, so far as I could be aware that if and when the marriage was restarted the post nuptial agreement would be put into a bottom drawer and forgotten and so far as I was aware under English law that on the vast majority of occasions post nuptials were not binding". I consider that this was most unfortunate advice.

The Wife was wholly unaware of the doctor's real role as outlined above, she trusted him and thought he was an honest broker. Given his position in the family as friend and counsellor over the years she probably trusted him more than her own solicitors (with whom she had little acquaintance and who had been chosen for her by her husband). The doctor's comments were incorrect and he was, as I have already found, the Husband's man. I am convinced that the doctor's words would have reassured the Wife that there was little real disadvantage in signing the agreement, whilst there was a lot to be gained given that the marriage might then continue.

Dr B also states in his affidavit that the Husband " became increasingly frustrated at the lack of progress in signing the post nuptial agreement which would allow him that leap of faithful [sic] to resume the marriage". I accept this evidence which mirrors that of the Wife concerning the Husband's attitude.

The Wife's mood remained very low during the early part of 2005.

By mid 2005, Mr K decided that she was definitely suffering from depression and he referred her to a Consultant Psychiatrist called AV. He diagnosed mild to moderate depressions and his reports states "The precipitating factor appears to be her marital problems. Other elements of aetiological significance are her unsettled upbringing with frequent moves and the unhappiness she experienced as a result of her parent's marital problems, which in turn seems to have contributed to the development of an anxious and possibly co-dependant personality, with a tendency to self-criticism, a low self-confidence and poor self-esteem". Having observed her in the witness box this description seems to me to be both insightful and accurate. It is now clear that her depression was building over the months =prior to this referral. Having reviewed the evidence it is probable that she was suffering from mild depression by early March.

I am sure that the Wife wanted the marriage to continue and it may well be that that was also the Husband's wish but he was, as I find, quite determined that, if a reconciliation did occur, it would only be on his terms.

Despite the Wife's wish to remain within the marriage, she was unable to keep to his second condition. At some stage, she contacted Irene. When the Husband discovered this fact, he tolerated it. However, life at home continued to be what has been described as a "roller coaster" of emotion. Mr Az told me that things were calmer in February but I do not accept that evidence. I think that some periods were calmer but there were still frequent rows and the parties were often deeply upset and at odds with each other. I am sure that this was affecting their children. I am clear and so find, that the Husband was becoming increasingly impatient about the Wife's failure to sign the agreement and increasingly domineering towards her.

The Husband told me that, when the adultery was first discovered, the Wife had been very supportive to him. She told him that she would always be there for him and that it would take about a year for him to learn to trust her again. He said that, as time passed, she became more distant again which he now puts down her re-establishing contact with Mr Y. He may well be correct but that does not explain the entire situation. I consider that his continued overbearing and demanding behaviour towards her took an increasing toll on her with the result that she was worn down and overborne by him.

I accept that she did resume her affair with Mr Y. I do not know when the physical relationship recommenced but I am clear that she did commit adultery with him on the 8th March 2005. On that day she went to the Athenaeum Hotel, ostensibly for some form of beauty treatment but, afterwards, she met Mr Y in a bedroom. She has said that they met only so she could finally say goodbye. It may be that she meant finally to end the affair but they did go to bed together. At a later date she admitted this adultery to the Husband. She told him the truth when she made that admission.

On 8th March 2005 the Husband was in New York on business. In the late afternoon (New York time) he phoned her and, as I find, they had a blazing row. It is the Husband's evidence that the call lasted an hour (and made him late for his business meetings). The call would have been in the evening UK time. The Wife asserts, and I accept, that the Husband told her that he was coming home the next day and "if I did not sign [the agreement] before he arrived back in England on the morning of the 9th March, the marriage was over. He said that he was gong [sic] to "destroy" me and that under Lebanese Law he would get away with giving me nothing". The Wife was challenged about these allegations but I am convinced that she has told the truth. As a result of the call the Wife knew that she could prevaricate no longer.

The next day the 9th March, she left the former matrimonial home in the morning and went to ZZZ's Head Office. She had lunch with business colleague(s) and then went to Bond Street to shop or run errands. She was driven during the day by Mr Az. He says that she appeared to be normal and was calm. But I do not accept this evidence. I am convinced that she was in turmoil. She may have gone through the motions of fulfilling her commitments but that does not mean that her mind was clear. I accept that the Husband telephoned her from Heathrow Airport on the morning of the 9th and asked if she had signed. When she told him that she had not, I accept that he then said to her that "he wanted it signed by the time he returned to the house later that evening. If not, then I was not to be in the house. I panicked for the rest of the day, not knowing what to do".

The contents of the Husband's calls late on the 8th March and on the 9th March and his demands amounted to undue and unacceptable pressure because they affected the Wife's ability to make clear, calm or rational decisions. I find that her free will was overborne.

Just past 7pm on the 9th March whilst she was travelling in her car, the Wife telephoned Mr V and informed him that she could not go home unless she signed the deal. Of course, in the light of the Husband's position, no signature would signal the end of the marriage. The Husband told me that he was not certain that he would have ended the marriage if she had not signed but she did not understand that to be his position. He had been very clear to her that if the deal was not signed, she should not come home and the marriage would be over.

At 7 pm Mr V was at a dinner near Sloane Square when his mobile phone rang. It was a fluke that he heard the call. He told me that it was an "an exceptional call" and he described it as "an SOS". He said "My recollection is that there was a finality about the situation, that although my advice had been "don't sign" and I think if Mrs A had been with me I would have tried to have a conversation with her and go through the issues again. This was a brief conversation for two reasons: One I was not in position to have a long conversation and secondly, something had happened, a decision had been made and Mrs A felt she had to sign the document and I had to provide the means for it to be signed that night". He described the call as "Pretty awful. It was a very distressed call. My experience is that many clients at the time when something is going seriously wrong in the marriage or immediately after the breakdown are very stressed and you can tell from the tone of their voice and the look on their face, which is often very drawn and white, that they are going through turmoil and are in a bad way and I certainly already had prior experience of that in Mrs A's case. This call I would regard and I regarded at the time and I regard now as a desperate call". I accept that description as being entirely accurate.

Mr Az was driving the car that night. Of course, the Wife did not know that he had previously been spying upon her for a considerable period and had collated the evidence of her adultery. Mr Az has described the call and what happened thereafter but there are a number of inaccuracies in his account. He says "She started to cry. She repeated that she was going to sign because she had promised the Respondent. After the end of the conversation she recovered quickly and talked to a friend about a social engagement". This version seeks to give the impression that in some way the Wife was faking her distress. I discount this entirely. In fact, I found Mr Az a most unsatisfactory witness. He is clearly in the Husband's pay and his loyalty lies only to him. At certain times in his evidence he appeared very uncomfortable and at the end he made eye contact with his employer (the Husband) and received a nod of approval from the latter. I am clear that the Wife was in a dreadful emotional state.

Mr V phoned his office. By chance a young trainee Ms M was working late. She had not been involved in the case at all. Mr V asked her to try and get hold of the Assistant Solicitor, GG, and get her back to the office. He explained that the client was coming to sign a document. The client was to take the original when she left and copies were to be retained.

The Assistant Solicitor was shopping in Regent's Street and returned to the office. She arrived at about 7.30pm. The Wife had arrived shortly before that time.

During the meeting the Wife was in a dreadful state and was very tearful. She was, as I find, in no fit state to sign any agreement. She was not thinking clearly and genuinely felt that she had no alternative but to sign. During the meeting she was advised not to sign but she signed only because she believed that she had no effective choice. A detailed attendance note was made of that meeting. It has been the subject of intense scrutiny and I deal with it below in the section dealing with the serious allegations made against her solicitors.

During the meeting the Assistant Solicitor crossed out the two terms in agreement relating to the children. Apparently, there had been some discussion about dealing with these points in a side letter. That letter was never prepared.

The meeting lasted about 1 ½ hours. The trainee told me that she had never seen a client so distressed. Even allowing for the fact that her experience of clients was limited, I accept her description of the level of the Wife's distress. It has been submitted that the Wife's anguish was only a manifestation of her moral dilemma because she knew that she had committed adultery with Mr Y the previous day. I accept that this might have been part of her torment. Indeed, a passage of the original attendance note that was omitted from the final version (and which has caused so much angst in relation to the solicitor's alleged misconduct) reads as follows "You said that you wanted to be in good faith to your Husband and you did not know if you wanted to be in your marriage any longer, your husband wanted you to love him". Others have had difficulty in interpreting what this means (and I can understand that, given the solicitors did not know that the Wife had been with Mr Y on the 8th March). However, I am clear that it expresses the Wife's wish to act in good faith and establishes her not being sure if she really wanted a reconciliation. If this was her state of mind, as I find it was, then the only reason she can have signed the agreement on that night was due to the fact that she felt she had no alternative. This is supportive of (and not contradictory to) my express finding that she was acting under undue pressure or, expressed another way, as a result of the undue influence of her Husband.

I am clear that the reason for her signing was her belief that she had no alternative. She understood that either she signed or she could not go home and that effectively meant that her marriage was over. That intolerable, undue and unwarranted pressure had been caused by the Husband's behaviour and his ultimatum. I repeat I am clear and so find that the Wife's free will was overborne as a direct result of the threats that the Husband had made to her over the previous 24 – 48 hours and his course of conduct since the 9th December. By acting as she did, the Wife bought herself a breathing space but had manifestly acted to her disadvantage whilst under duress.

Mr Az drove her home. The Husband told me that she came in and told him that she had signed. She gave him the document and then retreated to her room saying that she was exhausted and could take no further arguments that night.

The Husband informed me that he signed the agreement on the 11th March and that Mr Az took it immediately to Mr DS. I do not accept that evidence because Mr DS's office has no record of it ever being received. The signed copy only emerged when Mr Z produced it on about 25th April shortly before divorce proceedings commenced in May. I therefore consider it likely that the Husband only signed it at about that time.

I note that the Husband signed the agreement with the clauses relating to the children having been expunged. This despite his evidence that he regarded those clauses as being of prime importance. His actions reinforce my finding that by March (at the latest) it was the financial terms of the agreement that were of prime importance to him because he was seeking to gain a financial benefit by taking advantage of the Wife's genuine desire to remain within the marriage.

The parties then had a very unhappy holiday in Courchevel. It is clear that during the holiday, the Wife returned to London and saw Mr Y in Selfridges. When the Husband became fully aware that his Wife was still involved with Mr Y, the divorce proceedings began.

For the avoidance of doubt, I find that this post nuptial agreement was offered on a take it or leave it basis at the time of and in the throes of emotional melt down and was stipulated to be the only way in which to save this marriage. It was also in play at a time when the parties were living in the same household, were habitually arguing and where the Wife (on everyone's evidence) was being subject to constant questioning and arguments about her affair.

The Law as set out above, characterises this type of behaviour as undue pressure and undue influence. For these reasons I will not implement the terms of this agreement.

In addition, as I have found, the agreement was not premised on fairness, it was calculated by the Husband and his commercial lawyer on the basis of what the Husband was willing to provide. It was devised with the purpose of being either a golden handcuff, or a cheap pay off. As a result of the Husband's behaviour towards the Wife, there was no proper opportunity to negotiate its terms. For these additional reasons it would be wholly unfair it implement its terms. It would also be unfair to use them as a starting point with which to judge the fairness of any award.

"You said that you think that he loves you so much and more than anyone else in the world. He is unhappy about going into Counselling and has told you that he despises you at times. You are willing to give the marriage a try but you are not sure that he is. He wants a guarantee now and that is why you do not trust him "

"You wanted to sign something initially to show your good faith, but you think that H is treating you like an area of his business life. You have seen a different side of him, one that is hard and mean. You believe his wealth will double or even triple in the next few years and that is why he wants you to sign it".

"[GG] said that you could sign the agreement now but it would be risky. You would have to sign it knowing there was a possibility that it would be upheld and this was what you would end up with. Even though you were being pressurised into signing it, the law may not see it this way in the future".

"Self-evidently, fairness requires the court to take into account all the circumstances of the case. Indeed, the statute so provides. It is also self-evident that the circumstances in which the statutory powers have to be exercised vary widely. As Butler-Sloss LJ said in Dart v Dart [1996] 2 FLR 286, 303, the statutory jurisdiction provides for all applications for ancillary financial relief, from the poverty stricken to the multi-millionaire. But there is one principle of universal application which can be stated with confidence. In seeking to achieve a fair outcome, there is no place for discrimination between husband and wife and their respective roles. Typically, a husband and wife share the activities of earning money, running their home and caring for their children. Traditionally, the husband earned the money, and the wife looked after the home and the children. This traditional division of labour is no longer the order of the day. Frequently both parents work. Sometimes it is the wife who is the money-earner, and the husband runs the home and cares for the children during the day. But whatever the division of labour chosen by the husband and wife, or forced upon them by circumstances, fairness requires that this should not prejudice or advantage either party when considering para (f), relating to the parties' contributions. This is implicit in the very language of para (f): '… the contribution which each has made or is likely … to make to the welfare of the family, including any contribution by looking after the home or caring for the family'. If, in their different spheres, each contributed equally to the family, then in principle it matters not which of them earned the money and built up the assets. There should be no bias in favour of the money-earner and against the home-maker and the child-carer."

"A practical consideration follows from this. Sometimes, having carried out the statutory exercise, the judge's conclusion involves a more or less equal division of the available assets. More often, this is not so. More often, having looked at all the circumstances, the judge's decision means that one party will receive a bigger share than the other. Before reaching a firm conclusion and making an order along these lines, a judge would always be well advised to check his tentative views against the yardstick of equality of division. As a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so. The need to consider and articulate reasons for departing from equality would help the parties and the court to focus on the need to ensure the absence of discrimination"