Divorcing husband fails in attempt to claim dinner meeting was ‘without prejudice’

A wealthy husband has failed in his legal bid to claim that a dinner with his estranged wife constituted a ‘without prejudice’ meeting.

In BE v DE, the man, at 54, was 14 years older than his wife. Both were born outside the UK in different countries. They married in 2002 but had no children. The man held a “highly paid” job in a “well-known financial institution” which took him to him to different countries, including England. His wife, who had a keen interest in modern art, travelled with him.

By last year, the marriage had run into difficulties and they separated. They had differing views over where the wife should live – she preferred England while the husband wanted to live in his home country (not specified in the judgement).

At the High Court in London, Mr Justice Bodey explained:

“…the wife says that the husband was taken up overmuch with his work; whereas he did not feel it fair that he worked hard to earn all the money whilst the wife enjoyed an easy and glamorous lifestyle spending it.”

In April of last year, both the husband, ‘DE’, and wife, ‘BE’ issued divorce petitions without telling the other – the wife in England the husband in his home country. Each wanted to ensure that their preferred courts were first ‘seised’ of the proceedings. Article 19 of an EU regulation called Brussels II Revised states that:

“Where the jurisdiction of the court first seised is established, the court second seised shall decline jurisdiction in favour of that court.”

The husband’s petition cited England as the wife’s habitual residence for legal purposes, but he later insisted that this was a “fiction” because the courts in his country require couples to have been living apart for a year before they can obtain a divorce.

In April last year, the couple met for dinner in a restaurant. According to the wife, the husband had asked her for a “reconciliation”. In an affidavit, she stated:

“He and I were making a big effort with each other and I believed that we were doing so with the noble intention of saving our marriage.  It became clear to me that this was not true when we went for dinner ….DE presented me with a document to sign.  He told me it was a post-pre-nup and that it would help us to rebuild our marriage.  When I skim read the document, it repeatedly referred to our separation and I realised that it had nothing to do with saving our marriage.  I therefore refused to sign it.  DE then got very angry and shouted at me telling me I had to sign it.  I refused and there was an awful scene.”

The divorce proceedings continued. Eventually, in April of this year, the husband applied for a redaction of statements by the wife referring to the dinner because, he claimed, this had been a ‘without prejudice’ meeting – ie a confidential attempt to settle a dispute, the details of which which cannot be used or referred to at a subsequent trial or hearing. The meeting had been, he claimed, “conducted with a view to settling BE’s financial claims arising from our marriage.”

Mr Justice Bodey ruled against him, saying the dinner had taken place before a formal financial dispute had existed between the couple. He noted that the words ‘without prejudice’ had not been used during the dinner and he said, even if there had been a dispute, it had not been clear from the context in which the dinner had taken place that they were meeting to discuss it. The judge added:

“Nor for that matter on the current state of the evidence (although this may change at the jurisdiction hearing) does it look as though this occasion represented a bona fide attempt by the husband to settle, as distinct from an attempt to impose.”

The judge dismissed DE’s application.