H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, to pay her andpound;16,000 a year and to make periodical payments for the children of the marriage. W agreed that if she obtained a divorce she would not seek a lump sum or property transfer orders. H did as agreed in the separation deed but, in 1978, W petitioned for divorce and applied for ancillary relief, including a lump sum payment.
Held: No good reason had been shown not to hold the wife to her agreement. The court set out the extent to which a contractual agreement for a clean break provision on a divorce is to be reflected in the subsequent exercise of judicial discretion. There is a proper public interest in the court overseeing arrangements made in the throes of marital breakdown when emotional pressures on the parties are high and their judgment clouded.
Ormrod LJ discussed the weight to be given to the separation agreement: ‘To decide what weight should be given, in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel; all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not intended to be an exclusive catalogue.
I agree with Sir Gordon Willmer in Wright v Wright [1970] 1WLR 1219, 1224, that the existence of an agreement, ‘at least makes it necessary for the wife, if she is to justify an award of maintenance, to offer prima facie proof that there have been unforeseen circumstances, in the true sense, which make it impossible for her to work or otherwise maintain herself.’ Adapting that statement to the present case, it means that the wife here must offer prima facie evidence of material facts which show that justice requires that she should be relieved from the effects of her covenant in clause 8 of the deed of separation, and awarded further capital provision.’
Oliver LJ said: ‘in a consideration of what is just to be done in the exercise of the court’s powers under the Act of 1973 in the light of the conduct of the parties, the court must, I think, start from the position that a solemn and freely negotiated bargain by which a party defines her own requirements ought to be adhered to unless some clear and compelling reason, such as, for instance, a drastic change of circumstances, is shown to the contrary.’
Ormrod and Oliver LJJ
[1980] 1 WLR 1410, [1980] 3 All ER 887, [1980] EWCA Civ 2, [1980] 2 FLR 19
Bailii
England and Wales
Citing:
Cited – Brockwell v Brockwell CA 5-Nov-1975
Ormrod LJ said: ‘But it must be a matter entirely for the judge to look at all the facts and the financial situation of each party and taking into account the fact that they made this agreement which to my mind is a very important piece of conduct . .
Cited – Wright v Wright 1970
In the course of a settlement of divorce proceedings, a wife agreed to withdraw her claim for maintenance. She sought to re-open it.
Held: the principle of Hyman v. Hyman applied, notwithstanding that the agreement between the parties had been . .
Cited by:
Cited – A v B (Ancillary relief: Separation agreement) FD 17-Jan-2005
The husband appealed against an ancillary relief order, saying that the judge had applied the terms of a separation agreement without acknowledging that that agreement had been entered into without full disclosure having been made. Had the judge . .
Cited – Xydhias v Xydhias CA 21-Dec-1998
The principles of contract law are of little use when looking at the course of negotiations in divorce ancillary proceedings. In the case of a dispute the court must use its own discretion to determine whether agreement had been reached. Thorpe LJ . .
Cited – Morgan v Hill CA 28-Nov-2006
The father appealed an award of periodical payments to a former partner. She had a child by an earlier relationship. The father was immensely rich and during the relationship made financial provision for the child by the earlier relationship also. . .
Cited – North v North CA 25-Jul-2007
The husband appealed a consent order for payment of pounds 202,000 to commute a varied nominal maintenance order. The original order had been made many years before. In the meantime, the former husband had grown wealthy, and she had suffered . .
Cited – Sutton v Sutton 1984
The husband and his wife agreed that in consideration, inter alia, of the wife consenting to the husband divorcing her on the ground of two years’ separation and consent, he would transfer the matrimonial home to her, and she would take over . .
Cited – Soulsbury v Soulsbury CA 10-Oct-2007
The claimant was the first wife of the deceased. She said that the deceased had promised her a substantial cash sum in his will in return for not pursuing him for arrears of maintenance. The will made no such provision, and she sought payment from . .
Cited – Haines v Hill and Another CA 5-Dec-2007
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer . .
Cited – Williams v Thompson Leatherdale (A Firm) and Another QBD 10-Nov-2008
The claimant sought damages from her legal advisers. They had allowed her to settle an ancillary relief application knowing that the case of White v White had been referred to the House of lords, and the settlement proved to have been on . .
Cited – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Cited – Radmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
Cited – S v S FD 14-Jan-2014
The court was asked to approve a settlement reached under the IFLA arbitration scheme.
Held: The order was approved, but the court took the opportunity to give guidance. . .
Lists of cited by and citing cases may be incomplete.
Family
Leading Case
Updated: 01 November 2021; Ref: scu.224380