Case No. EWFC-155

9.The history of the marriage is as follows.10.The wife is aged 50 (d.o.b. 1972). She currently lives in rented accommodation in a city in, England. She comes from a family with Arabic heritage, and was born in another European country, but she was brought up in the USA and resided in the USA until late 2006, only moving to England with the husband after the marriage. My overall impression is that, notwithstanding the international flavour of her life since 2006, and her dual UK and USA citizenship, her heart lies firmly in the USA. She is a pleasant, impressive, intelligent, able and educated individual, appropriately proud of having attained an MBA from Wharton Business School in Pennsylvania (thought by many, including the wife, to be the finest business school in the world), and (as I shall develop further below) had a highly successful career in the world of investment finance before 2008 in the USA (and latterly in the UK) which has not been pursued since 2008.11.The husband is aged 48 (d.o.b. 1974). He also lives in rented accommodation in a historic city in England. He was born and brought up in England and is a British citizen. He is also a pleasant, impressive, intelligent, able and educated individual. He learned Arabic at University and he has been able to combine his language and financial skills to conduct a highly successful career in investment finance in the Middle East. 12.They met in London and started a relationship in May 2003. It is common ground that, initially, this was largely a trans-Atlantic relationship, with the wife living in New York and the husband in London and visiting each other only for such fleeting times as they could fit around their work; but it is common ground that it was a loving and intimate and emotionally committed relationship from an early stage. It is common ground that in about August 2004 the husband relocated to New York to enable him to pursue the relationship more easily. There is a dispute which I need to resolve as to whether this became a relationship of cohabitation when he arrived in New York in August 2004 (as the husband contends) or only later when they became engaged in January 2006 (as the wife contends). On that issue I want to make the following comments:-(i)I heard a good deal of oral evidence on this subject and was shown a good number of contemporaneous communications from the 2004 to 2006 period.(ii)In broad terms it is the wife’s case that (for personal and moral reasons, and notwithstanding that they were in a loving and intimate relationship from even earlier than August 2004) she did not contemplate cohabiting with the husband prior to formal engagement and that, whilst he spent an average of two or three nights per week with her at her flat before January 2006, and sometimes as much as four, they were definitely not cohabiting as such until January 2006.(iii)In broad terms it is the husband’s case that the parties commenced full cohabitation as soon as he reached New York in August 2004. He accepts that he did rent a room for $1,000 per month in another apartment nearby from August 2004 until early 2006, but this (he says) was a formality required of him by the wife to be able to present a picture of non-cohabitation to the wife’s father, who was thought to have personal, moral or possibly religious objections to pre-marital cohabitation. He told me he only actually stayed in this rented room about 15 nights in the period he rented it. In his view they were in all senses a cohabiting couple throughout this period.(iv)In determining this issue, I have in mind a number of authorities which touch on this (for example Kimber v Kimber [2000] 1 FLR 383 IX v IY [2018] EWHC 3053, E v L [2021] EWFC 60 and VV v VV [2022] EWFC 41). The factors to be considered include the number of nights per week spent together, the existence of a committed intimate relationship and the level of financial dependency. Also, does the relationship have the characteristics of being a committed sexual, emotional, physical and psychological, relationship and did they consider themselves to be in a quasi-marital arrangement?(v)In determining this issue the contemporaneous emails are not without ambiguity, but overall I think they are more supportive of the husband’s presentation on this point, with quite a number of references by the wife to her flat being their ‘home’ (for example in emails dated 15th March 2005, 5th May 2005, 12th May 2005 and 25th May 2005) and the contemporaneous jokey email from the parties’ friend ST saying: “I’m sure [H] just forgot where the old apt was seeing he was only there a few times”.(vi)My overall conclusion is that the parties did commence a relationship of cohabitation in August 2004 and that it was seamless thereafter, in due course turning into marriage. I regard the husband’s overall evidence on this issue to be more persuasive and I am satisfied that they were emotionally committed to each other and sharing a home from August 2004 onwards.13.The parties formally married in the USA on 3rd June 2006. A separate foreign marriage ceremony took place in the foreign Consulate in New York in August 2006 and the big wedding celebration took place in another country in October 2006.14.In December 2006 the parties moved to live in London. In January 2010 they moved from London to the Middle East. In March 2011 they moved from one country in the Middle East to another. In August 2016 the wife moved back to England and the husband followed in April 2017.15.In the course of these international moves, the marriage produced two children:-(i)A is aged 14 (d.o.b. 2008) and is currently a boarding pupil at a school in the city in which they live. It is expected that he will complete his secondary education there and then go on to university, possibly in the USA and possibly in the UK.(ii)B is aged 11 (d.o.b. 2011) and is currently a day pupil at a school in the city in which they live, but it is expected that he will start boarding in September 2023. It is anticipated that he will then move to be a boarding pupil at another school from September 2024 and will complete his secondary education there and then, like his brother, go on to university, possibly in the USA and possibly in the UK.(iii)Happily, both children are much loved by their parents and have good relationships with both parents and, at least in theory, the children divide their time broadly equally between the parties when not at school. This may be easier to achieve when they are both boarding pupils, but in practice my impression is that they spend more time with the wife at the moment. 16.Unfortunately, the marriage ran into real, unremediable difficulties, and the parties decided to separate, in the course of 2021; but they remained living under the same roof for the time being whilst their house sold. There is a dispute as to the precise date of ‘separation’ within 2021; but nothing turns on this in the context of this case and I do not propose to make any findings on this. 17.From August 2017 until May 2022 the parties both resided at the family home. This property was a large and attractive Grade II listed country property sitting in 16 acres of land with a swimming pool and tennis court. A plan for an extensive refurbishment was cancelled when the marriage ran into difficulties in 2021. The property was sold for £3,750,000 with completion taking place in May 2022. The net sale proceeds were £3,708,624 and it was agreed that each party would take £200,000 from the fund, the remainder being held in a designated joint account with HSBC. On completion both parties moved into rented accommodation, pending the determination of the financial remedies proceedings and this is where they remain.18.Divorce proceedings were commenced on 15th September 2021. Decree Nisi was ordered on 4th November 2021. Decree Absolute awaits the outcome of the financial remedies proceedings and is not, in itself, controversial.