AH v PH

In assessing financial remedies, the court must apply Matrimonial Causes Act 1973, section 25, and reach a fair result. A nuptial agreement should be given effect where it was freely entered into with full appreciation of its implications, unless it would be unfair to do so. An agreement may carry some weight even where it is non-binding or unfair to enforce. Needs, including housing and maintenance, may justify departure from the agreement. In a needs-based claim involving substantial non-matrimonial wealth, broad disclosure of overall wealth may be sufficient where the paying party accepts that any reasonable order can be met. Remarriage prospects must be disregarded when capitalising maintenance.

The petitioner sought financial remedies following the breakdown of a short marriage. The parties had two children and substantial assets derived from the respondent’s inherited family wealth. Before marriage they signed a Scandinavian marriage settlement, which was not registered and did not provide for English housing or maintenance. The respondent relied heavily on the settlement and proposed substantially lower provision. The petitioner sought generous needs-based provision, including housing, capitalised maintenance and child maintenance. The central issues were the weight to be given to the settlement, the petitioner’s housing and maintenance needs, and the appropriate structure and amount of the award.

1. Applicable approach. The court applied section 25 of the Matrimonial Causes Act 1973. This was a needs-based case, not a sharing case. The assets were inherited and non-matrimonial, but the petitioner’s needs had to be assessed generously, with the children’s welfare as the first consideration.
2. Marriage settlement. Applying Radmacher v Granatino [2010] UKSC 42, the settlement could be enforced only if the petitioner had entered it freely with full appreciation of its implications and it was fair to hold her to it. She had not understood the consequences of divorcing in England, the settlement did not address English housing or maintenance, and the respondent’s conduct was inconsistent with treating it as binding. It was therefore unfair to hold her to the settlement as governing her award.
3. The settlement nevertheless remained one circumstance under section 25. The parties intended to protect the respondent’s inherited wealth and provide the petitioner with housing provision. The court therefore took account of the payment already made under the settlement and invaded inherited capital further only to meet the petitioner’s changed housing needs.
4. Assessment. The petitioner required a five-bedroom London property of approximately 2,700 square feet, with provision for purchase costs, furnishing and a car. Her maintenance was capitalised. The court rejected an argument based on likely remarriage, applying Dixon v Marchant [2008] EWCA Civ 11. Given her age, the short marriage and the Duxbury paradox, capitalisation was limited to just under 14 years.
5. The court awarded total capital provision of £7,775,000, subject to credit for £760,000 already paid. A £2 million charge secured against the London property was ordered, exercisable when both children completed their first degree, or earlier on relocation or further order. The respondent was given 12 months to raise the capital and was required meanwhile to meet specified maintenance, school-fee and nanny costs. There was no order as to costs.

Not an appeal. The judgment determined the petitioner’s application for financial remedies at first instance.