Financial Remedies: getting the house in order first
Date posted: 31 October 2019
Family partner Aysen Soyer comments on a recent financial remedy case which was reported because of its’ unusual facts and general housekeeping directions made. The court directed that before the financial remedies process could proceed it was necessary to have a preliminary issues hearing for the court to determine various factors, including the length of the parties’ marriage, whether they should be bound to a ‘separation agreement’, and whether there was any marital acquest.
The parties met in 1999 and married the following year. The wife was a successful businesswoman with rich family connections. The husband was an art student and male escort, where the wife had been his ‘first and last client’. Almost immediately following the marriage, the husband suffered a head injury. They moved to Munich, and then Vienna; often living apart. In 2004 the wife was arrested on an immigration offence and spent some time in custody. The parties stopped sleeping together in 2004, and in 2005 the husband returned to England where he moved in with another woman. The wife moved to Monaco and eventually also came back to England in 2006.
By 2007, the husband had started a relationship with a second woman and he moved to Hove. The parties relationship ‘remained entangled’ but by 2008 they commenced separation agreement negotiations, which ensued until a formal document was eventually signed in February 2011. The parties agreed that they had separated in 2004, and that the agreement they had reached was in full and final settlement of claims. It provided for the husband to receive a lump sum of £280,000.
Despite the agreement, the parties continued to have a degree of dependency on each other. The husband purchased a flat in Hove. The wife purchased the flat above his to assist him in resolving a neighbour dispute, and then she moved in. The parties agreed not to progress a divorce until the wife secured her immigration status in the UK.
By 2016 the parties fell out again when the husband started a relationship with a third woman. He issued divorce proceedings the following year and applied for a financial remedy claiming that the separation agreement did not meet his income needs and so he should not be bound by it. He sought to argue they had separated in 2016. She argued that it was 2004.
This is a useful case because the court gave examples of ‘marital markers’ as to what would constitute the subsistence of marriage. The judge found in this case that there was no marital acquest during the period up to 2004 or subsequently. In relation to the separation agreement, the court found that the husband had no grounds for vitiating the agreement save for a potential argument that it did not meet his needs. This aspect of the case was adjourned for determination.
Interestingly, the legal fees in this case wiped out the funds in dispute! If the thinking behind a preliminary issues hearing is to save time and avoid unnecessary court costs, the parties surely failed in meeting that goal.
If you have a family case you need assistance with, make an appointment to see Aysen by contacting Mavis on 020 8885 7986.