Financial remedy applications on divorce are decided by the court, having regard to a list of relevant factors set out in section 25 of the Matrimonial Causes Act 1973. One of those factors is the duration of the marriage. Obviously, therefore, the court must determine how long the marriage lasted, i.e. the time between the date of the marriage and the date that the parties finally separated. As we shall see, this is not always a simple task.
In the recent High Court case MB v EB Mr Justice Cohen was being asked to determine three preliminary issues in connection with the husband’s financial remedies claim: the length of the marriage, the impact of a separation agreement entered into by the parties in 2011, and whether there was any ‘marital acquest’, i.e. assets acquired by the couple during the marriage. The facts of the case were, as Mr Justice Cohen stated, most unusual.
In order to keep this post to a reasonable length I will have to summarise those facts very briefly, although they really need to be examined at length to get the full picture.
The parties met in 1999 and married in England in the following year. There were no children. The husband is now aged 58 and is an artist. The wife is now aged 63 and is a businesswoman.
The parties were, it was agreed, together until 2004, at that time living in Vienna. However, early in 2005 the husband moved permanently back to England, where he had an affair with another woman. Despite this, the parties continued to have a relationship of sorts, with the husband visiting the wife from time to time. The wife herself returned to England in 2006.
In 2009 negotiations began between the parties for some form of financial settlement. Eventually in 2011 terms were agreed, and a separation agreement was entered into. The agreement stated that the parties had separated on 2004 and that its terms were accepted by both parties in full and final satisfaction of all financial claims by either party against the other. Under the agreement the wife would provide a sum of up to £245,000 for the husband to purchase a property of his choice, and would pay him a further lump sum of £35,000. Shortly afterwards the husband bought himself a flat in Hove.
But the separation agreement did not necessarily mark the end of the marriage. The parties’ relationship continued, much as before. The wife also provided further financial assistance for the husband.
By the summer of 2016, however, the bonds of affection and friendship between the parties were plainly becoming strained, to use Mr Justice Cohen’s words. The husband had formed a relationship with another woman and in September he gained entry into the wife’s flat without her permission and, according to the wife, removed items that did not belong to him.
The wife then instructed solicitors, and in August 2017 the husband issued divorce proceedings, followed by his financial remedies application. The three issues referred to above fell to be determined by Mr Justice Cohen.
As to the issue of the length of the marriage, the husband argued that it continued until September 2016, and the wife maintained that it ended no later than 2004. Mr Justice Cohen agreed that the marriage came to an end in the sense that the parties ceased to be in a marital partnership in 2004, but found that that the parties remained in “an emotional and enmeshed relationship” until 2016.
As to the separation agreement, the husband argued that it was void, due (inter alia) to the wife pressuring him to enter into it. In the alternative, he argued that it would be unfair to hold him to agreement because he and the wife did not in fact separate (as the agreement contemplated), and holding him to the agreement would leave him in a predicament of real need. Mr Justice Cohen’s conclusion was that the agreement was valid, and that the husband had no ground for vitiating the agreement, save for a potential argument that it did not meet his needs.
Lastly, as to the question of the marital acquest, Mr Justice Cohen found that there was none. The wife had throughout been dependent upon her family.
Of course, the big question is: what will be the consequences of these findings upon the final outcome of the case? That, as Mr Justice Cohen said, is a matter for another day.
You can read the full report of the judgment here.
