Case No. NP20D02617

was appointed in place of Dr Clifford. 21.At a pre-trial review on 2 February 2022, Mostyn J directed that W serve a schedule of the findings sought by her and which she said should be determined at the final hearing and the respondent should file his response. In her schedule dated 10 February 2022, W set out that she seeks the following findings as to the controlling and coercive behaviour she says she was subjected to by H: i)Verbal abuse, shouting and screaming including threats of physical violence;ii)Denigration, belittling and demeaning W to make her feel subordinate;iii)Financial control to make W feel dependent on H;iv)Ignoring, sulking and withdrawing affection if W refused to do as she was instructed, including to have sexual intercourse with H;v)The behaviour described at iv) above was then followed by showering W with affection and gifts when she did bend to his will (known as ‘love bombing’);vi)Gaslighting her: refusing to acknowledge instances of physical violence or his coercive and controlling behaviour and suggesting that any concerns expressed by W were made-up so as to undermine W’s own understanding of the abuse and to erode her sense of lived reality and personal autonomy, resulting in a distorted sense of reality according to him;vii)Controlling the running of the family home, regulating her everyday behaviour and coercing W into how exactly to run the family home and limiting W’s ability to live freely in the home;viii)Control of W’s life and time outside the home including persistent requests for W to allow the respondent to place a tracker on her phone, not allowing her to have hobbies or attend clubs (despite him doing so) as he said this took time away from him, and not allowing her to do anything which she had not sought his prior approval for by noting it on a shared calendar in the kitchen of the family home;ix)Restricting W’s contact with her wider support network, limiting or controlling interactions, telling W that her family and friends didn’t care about her, telling W that she must not discuss their relationship with any third parties and restricting W’s access to her mobile phone;x)Discouraging W from attending her church in order to restrict her time away from H, limit her independence and isolate her from a source of support;xi)Pressuring W to drink alcohol with him, even when she indicated that she did not wish to, and putting pressure on W to not eat her supper until he was also ready to do so, regardless of how late he returned home from work or how hungry she was;xii)Restricting W’s ability to travel, especially to visit her family and friends by discouraging her from doing so and then, if she did, ignoring her or criticising her for doing so on her return resulting in her feeling intimidated, downtrodden and low in confidence;xiii)Driving recklessly with the aim of scaring and intimidating W if she disagreed with him or made mistake when giving the respondent directions; andxiv)The above behaviours were all exacerbated by H’s heavy drinking.22.H’s response was to deny the allegations and to argue that it mattered not whether they were true as there was no causal connection between the allegations and W’s state of mind at the time that she negotiated and entered into the agreement. He argued that W entered into the PNA freely and with a full understanding of its implications. 23.On the first day of the hearing, I was required to deal with various preliminary issues including:i)Further participation directions. Mostyn J, as the allocated judge, had directed that the hearing should take place remotely. At the pre-trial review, W had confirmed to the judge that she was content for H to be able to see her on screen giving her evidence but by the time of the final hearing she had changed her mind and said that she was worried about giving evidence in front of him. There was no satisfactory explanation for this development. Nevertheless, it seemed to me that H was not unduly prejudiced if he could hear but not see W and I particularly bore in mind that if this had been an in-person hearing, W would in all probability have been screened from H. I therefore acceded to W’s request that H be not permitted to visually observe her evidence. In addition, I agreed to allow W a break when she wanted and the court took a break at her request approximately every 45 minutes during her evidence; andii)Mostyn J had permitted W to call as a similar fact witness a previous girlfriend of H. However, notice of her intended calling was given by W excessively late and the judge prohibited W from relying on the evidence if she was unable to make the former partner available. Just a few days before the final hearing began, W served a long statement from the witness containing a whole raft of new allegations. I refused to admit that statement or to allow evidence to be given of its contents as it was thoroughly unfair to H as he had been deprived of the opportunity to call evidence in reply. I gave W the opportunity of applying to adjourn that part of the evidence if she so wished, but no such application was made. Accordingly, the evidence of that witness was confined to those matters which had been raised in W’s section 25 statement in November 2021. The law24.The starting point of the law on agreements is the well-known case of Edgar v Edgar [1981] 2 FLR 19 where at page 25 Ormrod LJ said: To decide what weight should be given in order to reach a just result, to a prior agreement not to claim a lump sum, regard must be had to the conduct of both parties, leading up to the prior agreement, and to their subsequent conduct, in consequence of it. It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel, all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage. So, the circumstances surrounding the making of the agreement are relevant. Undue pressure by one side, exploitation of a dominant position to secure an unreasonable advantage, inadequate knowledge, possibly bad legal advice, an important change of circumstances, unforeseen or overlooked at the time of making the agreement, are all relevant to the question of justice between the parties. Important too is the general proposition that, formal agreements, properly and fairly arrived at with competent legal advice, should not be displaced unless there are good and substantial grounds for concluding that an injustice will be done by holding the parties to the terms of their agreement. There may well be other considerations which affect the justice of this case; the above list is not intended to be an exclusive catalogue.25.The Edgar approach was approved by the Supreme Court in Radmacher v Granatino [2010] 2 FLR 1900 where Lord Phillips said at paragraph 71:In relation to the circumstances attending the making of the nuptial agreement, this comment of Ormrod LJ in Edgar v Edgar at p 1417, although made about a separation agreement, is pertinent:"It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel; all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage." The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.26.I have been asked to consider whether coercive and controlling behaviour, if proved, falls within the pre-existing Edgar criteria or whether it represents a new category of circumstances which can vitiate/taint an agreement. 27.In my judgment, Ormrod LJ’s words are as relevant now as they were when uttered over 40 years ago. They stand the test of time. Coercive and controlling behaviour would plainly be an example of undue pressure, exploitation of a dominant position or of relevant conduct. It would be part of all the circumstances as they affect the two parties in “the complex relationship of marriage”. If Ormrod LJ were writing his judgment today, he might have employed words such as “coercive and controlling behaviour”.28.The parties agreed that in considering the allegations of behaviour I should approach the matter in this way:i)H’s behaviour to fit within the definition of coercive and controlling behaviour must objectively meet that description. It was immaterial whether he intended his behaviour to have an effect on W; the test for the court is whether objectively his behaviour was coercive and controlling; andii)Subjectively, that same behaviour must have the effect on W of depriving her of the ability to enter into the PNA of her own free will.29.I must look at the allegations in a broad, holistic manner. They are, to the extent that they are proved, part and parcel of a course of conduct. I cannot avoid looking at the allegations individually so as to determine their veracity, but I do not lose sight of the purpose of the exercise which is to assess W’s state of mind when entering the agreement.30.Although pleaded very widely as set out at paragraph 21 above, the evidence that I heard was confined to certain specific areas. Some of the allegations were not pursued and some were not supported by any evidence. Others were the subject of close examination. I now turn to them.The allegations of coercive and controlling behaviour31.Physical violence: There were a number of specific incidents on which W relied, both for what happened by way of incident, but also as examples of H’s temper and lack of control:i)In December 2012 the parties had an argument relating to the very recent death of H’s mother. W was in bed under the bedclothes and H was sitting on the bed undressing when in frustration (as he says) he brought his hand down on the bed from on high, holding the shoe or shoes which he had just taken off. In doing so he hit W’s leg which was under the covers. It was a forceful blow. W did not seek any medical advice but reported it to the priest and a Women’s Centre recorded bruising. She has described it as inadvertent and I do not think that H intended to hit her, but he was plainly reckless in what he did. It was this event that led both parties to question the forthcoming marriage;ii)In March 2013 in the course of another argument, W threw a cup onto the floor in exasperation, whereupon H took hold of some books and threw them in the air. One of them hit W on the head leaving an abrasion and bruise and at hospital she was also diagnosed with concussion. W agrees that the books were not thrown at her but once again, I find that H was reckless. I agree with W that on each occasion he showed a temper which should have been controlled;iii)In March 2017 W says that she ruffled H’s hair as she was walking past him, and that he then grabbed her arm and twisted it. There were others present whom she would have expected to have intervened if they had seen it. There is scope for the twisting being accidental as she was walking past as he took hold of her arm. H has no recollection of the incident. No injury was sustained. I accept that it happened, but I do not find that it was a cause of any deliberate or reckless injury; andiv)On 25 March 2018 there was a further argument which resulted in H grabbing the duvet from the bed and marching off downstairs to sleep on the sofa leaving W naked on the bed.32.The clear impression that I have is that this was a relationship that at times was tempestuous and that H would on occasions lose his temper. W says that they had major arguments about once a month. I do not accept that W was in fear of physical harm. There was no reason for her to be and she expressly told the police that she did not have such a fear. I do accept that the arguments and H’s temper during them caused her distress.33.With hindsight it is not difficult to see how these arguments came about because the parties are of very different character. H has the louder voice and speaks at length. He loves conversation and vigorous debate. W on the other hand is quieter, she retreats from confrontation, and bottles things up. She does not enjoy verbal jousting but dealt with her complaints of H in long accusatory emails. Each was capable of intensely frustrating the other.34.W said that her complaint about H’s behaviour was more of what she describes as his emotional treatment of her than his physical treatment of her or any perceived risk of violence. I accept that this was her perception. 35.Control of daily life: W says that H controlled where she went and what she did. She accepted that he never stopped her doing what she wanted, although he might ‘send her to Coventry’. When pressed, she could not give any example of an activity that he stopped her doing, but said that he frowned on them. I see nothing controlling in H’s request that W mark on the big calendar hanging in the kitchen when she was going to be out, as did H. This did not amount to her requiring his approval, but simply enabled each to know when the other was to be in or out. 36.There was no evidence of H restricting W’s contact with family or friends or seeking to keep tabs on her. The allegation that he sought to put a tracker on her phone was a complete misunderstanding. She had twice lost her phone and H simply passed on a suggestion made by one of his children that she install a “find my phone” app. 37.Finances: Once again, although the allegation is made, there is no evidence at all of H seeking financially to control W. The parties always kept their finances separate. H paid for all the expenses of his home and when they were together. W ran her own finances and looked after her homes and their lettings. W accepted that H was supportive of her attempts to set up her own film business and provided her with financial support during the 2018 separation.38.Drinking: I accept W’s complaint that H on occasions drank more than she approved of, and that he should have given weight to her feelings. Midweek he would abstain or have a modest amount of wine in the evening but at weekends and when in company and not driving he might over the course of an evening consume a bottle of wine. He accepts that this might make him louder than otherwise would be the case. W says that the various incidents created an intimidating and threatening home environment. W says that there was a cycle of argument: cold shouldering; being ‘sent to Coventry’; love bombing; and making up, all conducted by H. 39.W became convinced that H suffered from alcoholism, anger management issues, and Asperger’s syndrome. To show that he was not dependent on alcohol, H volunteered to and did abstain from alcohol for a month. I find that there was never any evidence of him being dependent on alcohol. Likewise, there has never been any evidence that he suffers from Asperger’s or any similar such condition.40.Dr Jones cast helpful light on these accusations. She explained that W was desperate to remain in the relationship with H and in order to rationalise that, she created the scenario whereby H suffered from a condition from which she could help him be ‘cured’ and thus rectify what she saw as the defects in their marriage. This intense desire to retain the relationship explains a lot of what happened when the separation agreement and PNA were being discussed in 2018. 41.Following the incident on 25 March 2018, W left H’s home and consulted solicitors. It is absolutely clear from the solicitor’s file that:i)It was W who made the running in the negotiations with H;ii)She set out what she regarded as her essential terms, namely the clearing of the mortgages on the two properties that she owned;iii)She was the one who took the lead in the change from there being a separation agreement to a post nuptial agreement;iv)She was well advised throughout by her solicitor who had said that:a)She should not enter into an agreement without there being full disclosure; andb)The agreement would not be in her interest particularly if the marriage were to endure for many years.42.I would not have found the absence of disclosure to be a vitiating factor. W knew what assets H had and that he was relatively speaking a wealthy man. H had expressed disinclination to file a Form E, as he had been requested, but there is no suggestion that he had failed to answer any questions put to him about his means. The solicitor’s second reservation about the agreement was well founded. So concerned was the solicitor that she required W to sign a disclaimer.The post nuptial agreement43.The post nuptial agreement recites the following which are particularly material:Recitals3: The parties have reconciled their differences and agreed to stay the [judicial separation] proceedings on the basis that a)The parties will engage in marriage guidance and counselling;b)The husband has paid £10,000 to the wife to enable her to relocate [this was in the early days of their separation]c) The husband has discharged the mortgage of £83,000d)The parties will spend the majority of their time together at the former matrimonial home which will be their principal dwelling but the wife will also maintain her own dwelling.7: Each party acknowledges that they are entering into this agreement of their own free will.8: For the avoidance of doubt, it is confirmed by the wife and the husband that they have signed this agreement without there being full disclosure of the parties’ financial position…Agreement and declaration2: It is agreed between the parties that the husband shall within 28 days discharge the mortgage on (W’s second property) …4: The parties agree their claims for financial provision and property adjustment orders do stand dismissed and neither the husband nor the wife shall be entitled to make any further application in relation to the marriage under the Matrimonial Causes Act 1973 section 23(1)(a) or (b) or section 24.44.W said that her priorities in the negotiations were:i)To be financially secure;ii)To be safe;iii)For the parties to get back together again; andiv)For the parties to engage in couples’ counselling. She was satisfied that the PNA financially met these priorities. Dr Jones45.Dr Jones is a forensic and chartered psychologist. She explained the difference between PTSD which is particularly associated with single events of trauma and CPTSD which is characterised by difficulty in regulating emotions and low self-esteem which is likely to be the consequence of a combination of events rather than a single occasion. The sufferer of CPTSD is likely to find it hard to manage events.46.In this context it is important to note that W had at least 2 or, as it was sometimes put, 3 bouts of reactive depression following the breakdown of relationships. 47.Dr Jones explained that previous life events are predisposing factors to a further relapse. A further relapse becomes the more likely the more events that there have been in the past. Potentially, a lesser trigger could set off the symptoms particularly if the new life experience replicates previous ones. 48.This is plainly a very important piece of evidence in understanding W’s state of mind at the time the agreement was signed.49.W’s religious faith is important to her and placed further demands on her to stay within the marriage. Her desperation to maintain the relationship is to be contrasted with what she was told and probably knew to be in her best interests. To put it another way, her need to maintain the relationship eclipsed her cognitive understanding.50.Dr Jones explained the limitation of the exercise she was asked to carry out. The main challenge in the assessment that she was asked to do, namely to cast light on W’s state of mind when the PNA was signed, was the lack of information. Working with one party alone, and she never spoke to H, made her reliant on that party’s account. Her assessment of W was carried out on the basis that everything that W said was correct. It is for me as judge to determine whether in fact her account is accurate. 51.Dr Jones thinks it likely that the diagnosis that she has made in 2021 was one that would have been valid in 2018. Of course, she cannot know with any certainty how W was in 2018 as there was no assessment carried out then. Dr Wood in September 2020 diagnosed W as suffering from PTSD rather than CPTSD. At about the same time Dr Green diagnosed PTSD and a co-morbid recurrent depressive episode of moderate severity.