Case No. NP20D02617

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.Drawing the threads together52.I am satisfied that at the time the PNA was negotiated and signed W was vulnerable by reason of her past experiences. She was desperate for the relationship to work for all sorts of reasons of which her faith was just one. She had invested a huge amount emotionally in this relationship and could not contemplate any other scenario. However, the pressure that she was under was self-created.53.H’s behaviour is relevant only as to whether it led to W entering into the agreement. I do not find that H’s behaviour can objectively be described as coercive or controlling or that it led to her entering into the PNA. To put it another way, whilst W’s psychological makeup and previous history of relationship breakups had deprived her of being able to make a rational and considered decision as to what was in her best interests, this was not caused by H’s conduct.54.I very much regret that so much energy has been devoted to exploring this subject. The emotional and financial consequences on the parties has been considerable. It has also been entirely unnecessary.55.In my view it is clear that this agreement did not adequately meet W’s financial needs. H’s argument that it put W into a far better position than she had been before the parties were married is valid but only insofar as it goes. True it is that W having signed the agreement had the benefit of (a) her main property with its mortgage of £83,000 paid off and (b) the small home that she purchased in 2013 mortgage free when H had discharged the mortgage of £53,000. That meant that she had a rental income from that property of some £7,000pa gross of expenses and tax which she had not had before.56.But, whilst the agreement provided for the meeting of W’s short-term needs, provided her earned income held up, it failed to enable her to meet long-term needs. Once her working days were over, W would have been left with her rental income, her state pension and a pension from employment of some £6,000pa net. This was not an adequate provision for someone who had been for the best part of 8 years (summer 2012-March 2020) the wife of a relatively prosperous professional person and did not enable her to meet her needs at much more than a near-subsistence level.57.H at the time seemed to have accepted this. The parties discussed H providing by will for W from his pension fund in the event of him predeceasing her, which actuarially was likely. He had agreed to take advice from his IFA, but he says that he was later advised that such provision was not possible, although he could not recall why.Matrimonial acquest 58.W’s case on this is unsustainable. Nearly all the valuable assets that H owns were purchased before the parties began to cohabit. During the marriage he purchased two relatively modest investment properties, one of which was funded by his share of his mother’s estate and the other largely if not entirely from pre-existing savings. 59.W’s assertion that because she moved into H’s property and resided in it as the matrimonial home for some of the period between 2012-2020 and because she visited his holiday home in France for short stays between 1-3 times a year she is entitled to share in the value of those assets, is in my judgment mistaken. She does not suggest that she made any direct or financial contribution to either property.60.There is no evidence of H’s assets increasing in value during their marriage; indeed, the sums spent on costs in these proceedings which have largely been funded by H would have been likely to eliminate any increase in value. 61.The one asset that can be shown to have increased in value is the capital value of H’s pension. W will share in that growth by way of pension share.62.On the other hand, W’s capital position has undoubtedly improved as a result of the marriage. H has provided her with the funds to redeem the mortgage and she has her investment property which is now worth £110,000 mortgage free which she did not have before, albeit that she paid the deposit of some £35,000 from her own resources. Of course, H spent weekends at that property too and so on W’s argument H should logically be entitled to a sharing interest in them.63.I therefore reject W’s sharing claim but insofar as she does have a claim, it is clear that it would be outweighed in value by her needs-based claim. Other evidence64.In reaching my conclusions as to the evidence, I have taken into the account the evidence of the witnesses who I did not hear as well as that of H’s former partner. I have to say that I did not find any of the other witnesses (other than Dr Jones) to be of material assistance. They all confirmed that there were difficulties between the parties. H’s former partner, plainly and self admittedly a lady of very strong character, claimed that H tried unsuccessfully to control whom she saw and what she did in the short time that they were together between about 2002-2003. Insofar as H may have exhibited such conduct it plainly had little effect upon her. The other witnesses did not advance the matter any further than I have mentioned.The parties’ open offers65.The open negotiations can be summarised as follows:i)On 20 January 2021, H offered to pay a lump sum of £75,000.ii)On 21 June 2021, H offered to pay a lump sum of £375,000. At that stage W’s outstanding costs were said to be something in excess of £30,000, so that the offer would have been worth some £340,000 to her.iii)On 8 July 2021, W sought a lump sum of £1,030,096 and a pension sharing order over 14.3% of H’s SIPP.iv)On 19 October 2021, H offered to pay a lump sum of £465,091 to be reduced pound-for-pound with the amount paid by way of LSPO and MPS. Mr Bates, on behalf of H, calculated the net lump sum offered as being £305,685.v)On 2 November 2021, W sought a lump sum of £1,050,601 and a pension sharing order over 14.3% of H’s SIPP.66.The open offers above were all made on a clean break basis. 67.The parties did not modify their open positions during the course of the final hearing. Assets68.The parties have agreed a schedule of assets with only one small dispute for me to resolve.69.W’s capital: She owns her home, with a net equity of just under £400,000 and her investment property valued at £110,000 but subject now to a mortgage of £69,000 taken out to meet various liabilities and living expenses. From her evidence, it appears that about £40,000 of the mortgage monies was utilised towards living expenses and £30,000 on legal fees. It has a net equity of £33,000, giving W property assets of approximately £430,000. 70.W has liabilities totalling some £166,000 of which £155,000 are outstanding legal fees. For the avoidance of doubt, I do not include as a liability the costs order made in a small sum against W in October 2021 which will need to be paid from the award that I make. 71.W has a pension fund with a value of £193,000 which produces an income of £6,100pa net.72.H’s capital: H has property assets worth just under £1.1m. He has a little over £123,000 in bank accounts and has other investments worth some £907,000. I take H’s figure for his likely realisable aged debt rather than its book value for the reasons that he explained, namely the very likely reduction in his outstanding CFA fees. He has outstanding legal fees of nearly £54,000 and other liabilities which take his total indebtedness to some £62,000.73.It therefore follows that H has non-pension assets worth some £2.06m and his pension funds have a total value of some £1.513m.74.W’s current income is agreed to be just under £23,000pa comprising earned income from her film making business of some £12,000 and rental and pension income between them producing £10,900. 75.It is right to point out that W’s earned income has fluctuated significantly, with her taking from her business anything between £0 and £23,000pa. Her business has recently obtained a contract to produce a film for £100,000 gross of expenses over two years. Whilst I accept that she is now taking £12,000pa, there is scope for this increasing.76.H’s total income is slightly more at the sum of £27,000 but with a likely rental income in addition and the capacity if he so wishes to increase his part-time earnings of £15,000pa which approximates to 30 working days a year.77.The standard of living of the parties was comfortable without being in any way luxurious. The PNA assessed78.I ask myself the questions posed at paragraph 67 of Radmacher. First, were there circumstances that detract from the weight that should be accorded to the PNA. There seem to me to be three:i)The fact that the parties had already reconciled and so were not negotiating against the background of a separation;ii)W’s need to keep the marriage going plainly impaired her judgment; andiii)The parties had left open the question of pension provision as an unresolved issue.79.I ask whether there are particular factors that enhance the weight to be given to the agreement. There seem to me to be two:i)W proposed the terms of the PNA; andii)W was satisfied that the PNA met her needs.80.Applying the test set out in