Case No. EWFC-136

52.The only oral evidence that I heard was from the two parties. In some respects, the evidence of both was unsatisfactory. The Wife’s answer to just about any question that Mr Leech KC, who appears on behalf of the Husband, put to her about the Marriage Contract, was that she could not remember. I entirely accept that it is very difficult to remember detail from twenty-eight years ago but this Marriage Contract was important and I find it hard to accept that she has absolutely no recollection of what the Notary told the parties. She told me that the purpose of the contract was to allow them “to separate what came from our families”. Whilst true, I accept that this would have been the default situation anyway. She then said that it did not occur to her as to what would happen on a divorce and that she did not ask herself the question. I accept that, when you are young and in love, it is not something that you wish to contemplate but the Notary had a duty to explain the effect of the Marriage Contract to the parties and this would have been a fundamental part of that explanation. After all, there is no point in a Contract that declares “separation de biens” whilst you are happily married as, in such circumstances, you can do anything you like. Other than on death, it is really only on divorce or separation that it has an effect. It follows that I cannot accept her answer that she did not know that it would affect provision on divorce.53.She was asked how they ended up going to see a Notary from the firm used by her family. She said that they had asked her parents to recommend a Notary and her parents had said “of course”. She did not accept that a draft of the Marriage Contract would have been sent out but I am clear that it must have been, given that the parties only had one appointment and signed the concluded agreement at that meeting. I find some limited support for that in the fact that the document said that it was executed before M Morin, when we know that was not the case. I suspect it was drafted on the basis that he would be the Notary but for some unexplained reason, Agnes Braun stepped in. The fact that it was drafted in advance means that someone must have instructed the Notary to draft a “separation de biens” agreement. She accepted that it was the Notary’s function to take her through the Contract. She said it had been “lost in the memory over the years” and that she could not “invent a memory she did not have”. It was then put to her that she would not have signed a contract she did not understand. She said that this was incorrect and that she had signed many things without understanding, claiming that she did not have “rigour”. It may, indeed, be that she has signed documents without reading them carefully over the years, but I am satisfied this Marriage Contract would have been explained to her over the previous hour so I cannot accept that she signed it without understanding it. Indeed, it is the Husband’s case that she asked a significant number of questions to the Notary. Given her personality, I am sure that would have been the case. She accepted it was not a difficult commercial contract but said she did not really pay attention, as contracts bore her. I cannot accept that either. She added that she thought they understood it but claimed it only involved separation of property if the assets came from their respective families. She said that, if you build together, you share. I am sure she has convinced herself of this but I will have to make findings as it is central to the case. 54.She was asked about putting €35,000 into the purchase of the French Alps apartment. She said that they did not consider how much each was putting into any of the properties, including the former matrimonial home and P House as it was “irrelevant”. She accepted that she could have put into the purchase of the French Alps apartment, all the money she had received from the sale of an apartment she had been given by her family in Paris. She had sold that property in September 2010 for €180,000. She was then asked about the time in 2016 when she asked the Husband for £150,000 to invest in her new business. She told me it had become a major issue in the marriage as he wanted to impose all sorts of conditions on the investment. She then said that she had access to all the Husband’s accounts via a number of cards. Mr Leech asked her about that. It transpired that four of the cards on which she relied were for Air Miles or the equivalent and that the rest did not give her unfettered access to the Husband’s money. She added that she would use the cards for purchases not transfers. She accepted that she could not call the bank to move money as her name was not on the accounts. 55.She was then asked about her earning capacity. She was taken to a job advertisement for the Managing Director of a “fantastic branded consumer products business” with a salary of £180,000 plus benefits. There had been 174 applicants. She said that the job specification was not describing her abilities, other than being ambitious and an innovator. I am absolutely clear that she would have no realistic prospect of obtaining such a job. She has not been employed since 2007. She is now 54 years of age. She has recently been an entrepreneur. I am not finding that she could not obtain some sort of a job but I am clear that it would not be anything like this particular one. 56.I then heard from the Husband. I have to say that I found his recollection of the background to the Marriage Contract to be much more convincing and plausible than that of the Wife. He told me that he had not been involved in making the arrangements for the meeting. He had been sent a brochure about marriage contracts, which he had read and a draft of the Contract, which he had not read. Whilst I find that surprising, particularly as it is a short document, he had nothing to gain from lying to me about that. He said that Agnes Braun explained the consequences of the Contract to them. She said that, if they wanted to buy an asset together, they could but it would need to be specified. They could buy it in uneven shares. She then started to talk about the impact of the Contract on divorce. He said words to the effect of “let’s not talk about divorce” but he was given a ticking off and the Notary proceeded to do so. I find that this evidence has the ring of truth and I accept it. He added that they were told they had to pay attention. He said he vividly remembered it. He added that it was very clear as to where the assets would go on divorce. Again, I accept this evidence. The Notary had an obligation to explain this and I consider it inconceivable that she would not have done so. 57.He was taken to his Form E where he had said that his family have a tradition of passing on assets from one generation to the next and that this is an important part of French culture and family structure. Mr Boydell then referred him to a comment that “anything our respective families have or (sic) gifted to us is entirely separate from our other assets”. His response was that they had discussed the preservation of inherited assets but there was no need to sign a Marriage Contract to achieve that as that is the default regime in France in any event. He added that marriage contracts are relatively common within their social set. Their significance is well-known and everybody knows what they do. They knew that, if they separated, the finances would be divided according to who owns what. He said that it was important to the Wife. Her mother had suffered from having given up work. The Wife had sworn that she would never relinquish that independence. She wanted a full ability to work and to retain the proceeds of her endeavours. He gave her that reassurance. I remind myself that the Wife had, at that point, been working for C Group for approximately three years in a responsible role, whereas the Husband had been a student, even if he had, by then, secured a job at A Bank. The Husband added that the whole point of a Marriage Contract is driven by what would happen on a separation. It was discussed by them outside the meeting with the Notary but he did not believe they discussed the position if they had children. 58.It was then suggested to him that Article 2 of the Contract undermines his case. Article 2 provides that personal effects, jewellery and furs shall be presumed to belong to the spouse who makes personal use of them. This would not, however, apply to family jewellery inherited or gifted even if used by the other spouse. I cannot accept Mr Boydell’s point in relation to this. I consider it supports the Husband’s case. This clause is necessary to prevent the “separation de biens” being used, for example, to prevent the Wife keeping her wedding ring or engagement ring if bought for her by the Husband. Mr Boydell made much of the fact that the document did not mention divorce. I accept that but I do not take the view that it takes the matter forward, given that I accept the evidence that the Notary explained the consequences of divorce to the parties. The Husband said that the document was in a standard form and there was no other contract available in France. He also made the point that the French Courts consider this to be a perfectly valid marriage contract that will be enforced on divorce. Moreover, I am clear that, if it was not intended to include the position on divorce, there really would be no point in entering it at all. He then stressed that the Wife asked a number of questions during the meeting with the Notary although he could not remember what she asked. 59.Mr Boydell then turned to other aspects. The Husband said that there were tax disadvantages of acquiring the French Alps apartment in joint names. There was the problem if the proceeds of sale were remitted to the United Kingdom but there would also be UK Capital Gains Tax on any increase in value of the Wife’s share. Mr Boydell asked him about SCo. He accepted that he told the Wife that he did not believe in her business plan. He felt the projections were overly optimistic. The product had been delisted from a number of supermarkets and the management structure was inadequate. He felt it was too risky. He acknowledged that it was a small sum for him but he said he is very careful with his money. I have to contrast this with his recent investments in OCap and NCap that he says are replete with risk and that I should take as net liabilities. He said he treated his Wife as he would any potential investment. He had imposed four conditions before agreeing to advance the money. I said in evidence that I considered this all to be incredibly ungallant of him. It upset the Wife enormously. This was a relatively small sum and he should have just paid up. As it was, he was entirely wrong as the Wife made a success out of it. I do accept that he subsequently transferred the shares to her but the evidence did appear to indicate that this was in part to save tax on sale, as she could take advantage of entrepreneur’s relief on Capital Gains Tax whereby she would only pay 10% on the first £1 million of gains. 60.He was asked about an asset schedule that did not appear to distinguish between assets in his name, assets in her name, and assets in joint names. He said that the previous tab on the Excel Spreadsheet did do so. He accepted that the family was worth around €21 million in 2016/2017. Not surprisingly, Mr Boydell asked him about the OCap and NCap investments that he has included in his Asset Schedule as liabilities. I have already made my point about that. I did ask him if he would transfer the assets to the Wife at these valuations and all he could say was that it was not permitted. He was then asked about further discounts he had included such as 30% in relation to money already received from B Bank shares. He said that the Bank could claw the money back if it lost money as a result of his decisions or reputational damage. I consider this is pretty close to fanciful despite his evidence that he had received two written warnings for mistakes in compliance. He was then asked why he had excluded entirely his B Bank unvested shares. He said that this was because the Bank would be entitled to cancel the shares if he left the Bank but set up in competition to it. Whilst this may be right, it is pretty clear to me that some of these shares would vest before he left the Bank. Moreover, if he was to decide to compete with the Bank, it would be his decision that he would presumably take on the basis that he would make more money from his new venture than he would lose from the unvested shares. I remind myself of his own evidence that he is very careful with money. 61.The one area that does need careful consideration is the question of latent tax on the sum of €4,561,211 held offshore in Julius Baer accounts. If that was remitted to the United Kingdom, income tax would be payable at 45%. This would amount to around £1.8 million. I appreciate that the Husband is very careful with his money and he would do everything possible to avoid such tax. Having said that, if there was to be an equal division of everything, it is difficult to see why one party should be left at a disadvantage with a significant latent tax liability. Moreover, he did say that he was expecting that he would have to use a lot of the money to pay the Wife the award that I will be making. Finally, in relation to future property purchases, Mr Boydell took him to his own comment in his section 25 statement that they would both need to “buy a three bedroom house in London”. I realise that it would be unfair to hold a party to such a statement in the face of a necessity to purchase more economically but, in a case where the assets are significantly in excess of £20 million, it is relevant that he was previously of that view.