The wife of a rich man wanted pounds 2.5M to purchase a home for herself and the children pending the determination of her claims for ancillary relief. There was no fund to draw on but the husband had ample means. She sought lump sum provision in advance of the anticipated hearing date three months thence alternatively an appropriation order for the property she wished to purchase. The court was asked whether or not there was jurisdiction to entertain the summons. The parties had signed a prenuptial agreement, which would confine the wife to the pension of a retired German judge in the event of their divorce (the wife was in the judicial civil service at the time of the marriage).
Held: Duxbury style orders were to be followed where a Husband has very substantial assets. The court could apply a 4.25% interest rate.
As to the pre-nuptial agreement: ‘In this jurisdiction they must be of very limited significance. The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised for the control and limitation of standards that are intended to be of universal application throughout our society.’
Thorpe J said: ‘Mr Singleton (for the wife) argues that the court has power to order an interim lump sum, alternatively a lump sum by stages, the first fixed and paid preceding the substantive hearing, and the second quantified at that hearing. Mr Blair (for the husband) marshals the argument that there is no such power and that there is clear authority to that effect. My preference is for Mr Blair’s submissions, but it is not necessary for me to decide the point on this summons for I find that Mr Singleton’s alternative presentation is more relevant to this dispute and more persuasive. He relies on the decision of Waite J. in the case of Barry -v- Barry.’ and ‘In my experience following divorce and within ancillary relief proceedings, the cost of rehousing the wife and children may be a crucial issue – indeed even the only issue. In most cases it would be undesirable to pre-empt that issue or confine the judicial discretion to be exercised at the final hearing. But where the available assets are very substantial the cost of rehousing the wife and children is only one of a number determinations, the summation of which will be a lump sum that accompanies the mutual dismissal of all claims. In the preparation for the final hearing the purchase of a property in advance of that hearing may be the subject of some tactical manoeuvring. If the husband judges that the cost of a proposed property is less than the budget that the judge might fix, he encourages and facilitates the purchase. If he thinks it more than the budget he obstructs. Conversely, the wife may propose a purchase at the top end of the range, not only to fix that ingredient to the lump sum, but to establish subsequent income and expenditure that will be reflected in the Duxbury calculation.
Where there are children, they may be prejudiced by adult manoeuvring and selfishness. Where all the assets liquid and illiquid are owned by the husband he may be in a position to exert unfair pressure on the wife, who may for particular reasons need to sign a contract in advance of the fixture.
In these circumstances what is needed is a judicial discretion to ensure fair play pending the final hearing.’
Judges:
Thorpe J
Citations:
Ind Summary 26-Feb-1996, [1995] 2 FLR 45
Jurisdiction:
England and Wales
Cited by:
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, . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 03 February 2022; Ref: scu.80438
