MB v EB

A separation agreement may carry substantial weight where it was freely negotiated, each party had legal advice, and each understood its intended effect. Lack of full financial disclosure does not by itself reduce its weight where the parties possessed the information material to their decision and intended the agreement to regulate their financial affairs. The court must nevertheless assess objectively whether it would be fair to hold the parties to the agreement at the time of financial remedy proceedings. Needs remain central. Provision which meets capital needs may be insufficient if it leaves a party without an adequate income and in real need. The end of a marital partnership is identified by the accumulation of relevant markers, not merely by continued legal marriage or continuing emotional attachment.

The parties married in 2000 but lived largely separate lives. They ceased living together in 2004, although their emotional relationship continued for many years. In 2011 they executed a deed of separation after negotiations conducted with solicitors. The agreement provided funds for the husband to acquire a property and a further lump sum, in full and final satisfaction of claims.

Following the husband’s divorce petition and application for financial remedies, the court directed a preliminary issue hearing concerning the length of the marriage, the effect of the separation agreement, and whether there had been any marital acquest. The husband alleged duress, undue influence, abuse of a dominant position and unfairness arising from unmet needs. The central questions were when the marital partnership ended and whether the agreement should be given effect.

1. Length of the marriage. The court applied the approach in IX v IY [2018] EWHC 3053 (Fam). The relevant date is identified by an accumulation of markers showing that the relationship has crossed, or ceased to cross, the threshold of a marital partnership. Cohabitation is important but not essential. Continued affection, emotional entanglement and occasional time spent together do not by themselves establish that a marital partnership continues.
2. The parties separated in 2004. By then they had separate homes, limited access to one another’s properties, little shared daily life, no continuing sexual relationship and relationships with other partners. Their emotional and enmeshed relationship continued until about 2016, but that did not preserve the marital partnership.
3. Separation agreement. Applying Radmacher v Granatino [2010] 2FLR 1900, the agreement was not vitiated. It followed proposals initiated by the husband, was negotiated through solicitors, and was supported by independent legal advice. There was no sufficient evidence of duress, undue pressure, exploitation of a dominant position or other vitiating conduct.
4. Full disclosure was not essential on these facts. The husband knew that the wife was wealthy and understood the nature and effect of the agreement. The parties intended it to govern present and future financial consequences. The court also applied Versteegh v Versteegh [2018] EWCA Civ 1050 in treating legal advice as desirable but not indispensable where the party understands the agreement’s implications.
5. The agreement remained subject to fairness at the time of enforcement. The court gave significant weight to autonomy, the parties’ stated intention that no claims remained, and the fact that the agreement broadly reflected the husband’s own proposals. The husband’s capital needs had been met, but the adequacy of his income provision had not been sufficiently investigated. Any further determination of needs was therefore adjourned for a speedy and proportionate decision. There had been no marital acquest.