Last summer I visited Porto Ercole in Tuscany, Italy. There, I reflected on some recent family law cases – and the lack of change in human nature since the time of Caravaggio, who died on the rocky beach I was visiting and is buried nearby.
Caravaggio was a master of human nature, which he summarised ably in his paintings. No-one knew more than he of the flaws in the human character, which can lead to profound suffering. He inflicted suffering, and suffered for it. He lied, cheated, gambled and murdered. He was wracked with guilt thereafter, yet left a peerless legacy to the art world: some of the most descriptive, moving and greatest paintings ever produced. Caravaggio knew the nature of torment.
It is 400 years since he died and until 10 January this year, the Borghese Gallery in Rome exhibited some of Caravaggio’s artwork together with that of 20th Century artist Francis Bacon. Another artist who has been called “a tormented painter”, Bacon has also been described as “one of the most anguished artists of the 20th Century”. He had a fascination with the Crucifixion and an open mouth, a Scream. These two artists were featured together: they may have lived four hundred years apart but according to Anna Coliva, the director of the Borghese Gallery, they are “linked by a deep suffering for the human condition and an internal sense of devastation”. It was quite an exhibition. Immensely moving and thought-provoking, it was a stunning success.
Shortly after the Rome exhibition ended, a case called K v L resurfaced in the English courts. It is the same case that troubled me when I was in Porto Ercole, and about which I wrote at the time. It concerns a convicted paedophile who attempted to claw a share of his former wife’s fortune. Unable to bring herself to face him in court, she had resorted to giving evidence through a video link-up.
The husband subsequently attempted to appeal an order in the ancillary relief proceedings, and his application was heard in the Court of Appeal a few weeks ago. This case continues to trouble me. Why must the wife be the tormented one of the pair? Shouldn’t it be the other way around?
K v L
Here are the facts. In 1983 a woman with a £4.5 million fortune married for the second time. Her new husband, who had only a half-share in an overseas property, was worth £100,000. He also stood to inherit £100,000 upon the death of his mother. The couple separated in 1993, following his affair with another woman, but reconciled after the husband transferred his half-share of their London home to his wife, and agreed to make no claim upon her family fortune.
Unknown to the wife, her husband was responsible for sustained sexual assaults on two of the wife’s grandchildren from her first marriage. The abuse was discovered in 2007, and he was convicted and jailed. When the couple divorced the following year, the husband wanted £500,000 to meet his “reasonable needs”. Mr Justice Moylan dismissed this application – and made a costs order against the husband, leaving him with virtually nothing.
Then the husband, serving a four-and-a-half year jail term in HM Prison Wandsworth, applied for leave to appeal the order. He wished to argue that notwithstanding his gross misconduct, the court should consider what his “reasonable needs” would be after he was released. He argued that his needs could and should be met by his wife out of her very substantial wealth. Not surprisingly, given the impact of his behaviour upon her and her family, the wife contested the application.
Findings of gross misconduct as set out in section 25 of the Matrimonial Causes Act 1973 are rare. As was made clear in the case of Miller v Miller, adultery is not gross misconduct.
I can recall only one case in my career when a finding of gross misconduct was made. It was many years ago, when I was newly qualified and “poached” by a firm who offered to double my salary to join them! I agreed – delighted that I could now afford a mortgage – and it was the first case with which I was presented.
This was a High Court case, involving a mentally disturbed wife who stabbed her husband in the throat and left him to die. He made a recovery, but his speech was impaired and would never improve. After her discharge from a psychiatric hospital, the wife made an application to the court for a financial settlement. The husband contested any payment to her at all, but although her award was reduced, it was not extinguished. The court found that the wife’s judgment on the fateful night had clearly been impaired. Her needs still had to be met, but the sum was reduced by 30 per cent to take the husband’s suffering into account.
In the case of K v L, a similar argument was advanced. The husband sought to argue that after he was released, how could he possibly live on the sum of £30,000 (all that was left to him)? What was £30,000, compared to the substantial wealth enjoyed by his wife? It must have seemed like an attractive argument to him and also to his legal team, who recently tried to make his case before the Court of Appeal.
The question for the court
Did the husband’s reasonable needs trump his gross misconduct, both factors set out in section 25 of the Matrimonial Causes Act 1973, and both of them factors for the court to take into account? Should the court make a pronouncement as to which should be preferred?
Lord Justice Wilson refused permission for leave to appeal Mr Justice Moylan’s order, and declined to do so. He cited Lord Justice Thorpe in the 1999 case of Clark v Clark (2FLR 498), noting, “the statute defines the judicial task and I am against any further analysis or overlay”.
The issue before the court, said Lord Justice Wilson, was not to give the matter further analysis, but to consider what the ordinary man in the street would deem fair. This husband had some expectations of inheritance from his 94 year old mother. In any event, the husband had said many years previously that he would not pursue the wife’s wealth if the marriage continued. The court had held him to his promise. Reasonable needs and gross misconduct were both factors. As Lord Justice Wilson elegantly put it, however, “it was for the judge to analyze the consequences of the clash through the prism of what was fair”.
And that must be right. The outcome of this case certainly goes against the advice that many family lawyers give clients about inheritance expectations being more or less irrelevant in the eyes of the court, given that a person may make a will leaving their estate anywhere they choose. On the other hand, the facts of this case were exceptional. The ordinary man in the street could not reasonably approve of the second husband benefiting in any way from the wealth of the wife’s family, given the suffering he had personally and “tumultuously” inflicted upon the wife, her children and grandchildren in that family.
The case continued with consideration of the costs order made by Mr Justice Moylan against the husband. That too was also approved by his Lordship, and was regarded as an issue quite apart from the gross misconduct that had prevented a financial settlement as sought by the husband.
Costs were awarded on the basis of the husband’s unreasonable conduct in litigating in such an unreasonable way during the proceedings. This is interesting again, because we practitioners give pragmatic advice to our clients that each side will usually pay their own costs. In this case, however, the court found that the husband had persisted with his unreasonable expectation of a high award in the region of £500,000, and that the final award was in line with what the wife had offered before the proceedings began. She had no choice but to litigate, and it was unreasonable to expect her to fund all of her own costs.
We do encounter litigants who believe that, given the usual “no order” for costs principal, they can continue to litigate without risk to themselves, hold out for a high award and take their chance in court, invincible to a costs order. This case, although unusual, is a reminder that litigants who persist with inflated expectations may yet be ordered to pay costs.
What would the husband have gained, had there been no misconduct?
Had there been no misconduct, it is inconceivable that the would have left a 24-year marriage with just £100,000. His reasonable needs would likely have been met in full, irrespective of his promise to make no claim. Given that there was more than £4 million in the pot, it is likely that the husband would have received about £1 million.
In the event, the judgement handed down ignored his needs, took into account a potential inheritance (even though it had not fallen in and was not bound to do so ) and, after the costs award, left him with £30,000 for himself. His gross misconduct reduced his award to his remaining interest in the overseas property and nothing else at all. His award was further reduced by his decision to continue litigating.
What continues to strike me about this case, however, is the lack of any remorse on the part of the husband. He has seemed only to think of himself, regarding his wife as his provider. Has he put out of his mind what he has done?
He litigated, and the strain of that litigation upon the wife and her family should not be underestimated. He continued to litigate to one of the highest courts in the land to try and obtain £500,000 from his wife, who was so traumatised that she could not bear to be in the same room as him. He is a tormentor still.
Without approving the practice, it is fair to say that in other parts of the world, this man would have paid the price for paedophilia with his life. Yet he felt able to pursue his wife for a large sum of money to the bitter end. How could he have done so? How can he live and litigate apparently so at ease with himself, given what he has done? What is his torment? Where is his atonement?
Perhaps Bacon and Caravaggio, with their searing knowledge of the lowest depths that human behaviour can plumb, would have the answers. For all my experience in family law, I can think of none.