Family Law Hub

Luppi v Revesz [2013] EWCA Civ 1756

Contested financial provision case where the H was appealing on a vast number of diverse grounds, including the judge's treatment of the pre-nuptial agreement.


  •  B6/2013/2138

    Neutral Citation Number: [2013] EWCA Civ 1756

    IN THE COURT OF APPEAL (CIVIL DIVISION)

    ON APPEAL FROM THE PRINCIPAL REGISTRY OF THE FAMILY DIVISION

    HIS HONOUR JUDGE 0'DWYER

    Royal Courts of Justice

    Strand,London WC2A 2LL

    WEDNESDAY, 27th NOVEMBER 2013

    B e f o r e:

    LORD JUSTICE VOS

    Between:

    LUPPI (Appellant)

    v

    REVESZ (Respondent)

    DAR Transcript of the Stenograph Notes of

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    The Appellant appeared in person

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    LORD JUSTICE VOS:

    Introduction

    1 This is an application for permission to appeal from the decision of His Honour Judge O'Dwyer dated 13 May 2013 in relation to a contested claim for ancillary relief.

    2 Mr Gianfranco Luppi, the intended appellant and the husband of Marianna Revesz, seeks permission to appeal and an extension of time in which to do so. I am satisfied that he should be granted an extension of time for making his application for permission to appeal.

    3 The parties had a pre-nuptial agreement dated 18 September 1996 which provided that each party should retain what they brought to the marriage and thereafter the assets should be divided equally. The parties married in Venezuela on 27 September 1996. In August 1999 the parties moved from Venezuela to the United Kingdom and they have two children aged 14 (G) and 8 (A). They separated on 17 May 2011 and a decree nisi was pronounced on 2 April 2012. The husband and wife are now aged 50 and 45 respectively.

    The Judge's Decision

    4 The judge decided that the wife should transfer a lump sum of £120,000 to the husband and that she should pay him £1,800 per month maintenance until she did so. The judge held that there should be a 40 per cent pension share to the husband. The judge declined to order periodical payments to the children but the school fees order made by His Honour Judge Jenkins of 23 August 2011 remained in force. The judge made no order as to costs.

    5 The effect of these orders on the judge's calculation was to produce £261,000 in the husband's hands and £374,000 in the wife's hands. He placed the overwhelming emphasis on the needs of the children and for them to be housed, which he thought would cost a minimum of £500,000, and on the fact that the husband had obfuscated his financial position and that the husband could have obtained work but had chosen not to do so for various reasons that need not detain us this morning.

    The Grounds of Appeal

    6 The husband seeks permission to appeal on a massive number of diverse grounds. Indeed, he added to those grounds in four particular respects only last week. I shall seek to enumerate the grounds as speedily as I may.

    7 First, the husband says that the judge should have awarded him a lump sum of £400,000 instead of £120,000.

    8 Secondly, as to the judge's treatment of the pre-nuptial agreement, the husband says that the judge should not have taken into account his Venezuelan property when the pre-nuptial agreement required it to be excluded as an unavailable asset. The judge, he says, was wrong to ignore the pre-nuptial agreement on the grounds that it did not take into account the position in relation to the children.

    9 Thirdly, the husband says that the judge pierced the corporate veil by ignoring the commercial loan in Venezuela and holding that it would not have to be repaid.

    10 Fourthly he said that the judge was wrong to take into account the trust interest of £20,000 received by the husband some 11 months before the hearing.

    11 Fifthly, the husband argues that the judge should have taken into account the unpaid accommodation costs of £38,000 that should have been paid by the wife to the husband.

    12 Sixthly, the husband contends that the judge was biased and unfair to him generally in the course of the lengthy hearing.

    13 As I have said, on 20 November 2013, the husband filed an application to amend his appellant's notice to raise additional grounds of appeal as follows: the seventh ground is that the husband wishes to rely on the social services investigation into the welfare of the children that will, he says, result in the children spending more of their time with him. Plus, he says, there is a change of circumstances within the principles enunciated by the House of Lords in Barder v Calouri [1988] AC 20.

    14 The eighth ground on which he now wishes to rely is that the father says that the judge failed to consider that he, the father, would become insolvent as a result of the loan on the Venezuelan property.

    15 The ninth ground is that the wife's solicitors disclosed after the hearing that her pension was worth £70,000 odd more than was previously disclosed to the judge.

    16 The tenth ground is that certain facts concerning the wife's alleged new partner were not disclosed to the judge at the time of the hearing.

    17 Finally, the father seeks to rely on his rights under article 1 protocol 1 and articles 6 and 14 of the European Convention on Human Rights.

    Pre-nuptial agreements

    18 In Radmacher v. Granatino [2011] 1 AC 534, it was held in essence, relevantly to this application, first that the court should give weight to an agreement made between a couple prior to and in contemplation of their marriage as to the manner as to which their financial affairs should be regulated in the event of their separation, in circumstances where it was fair to do so. Secondly, the House of Lords held that the court could hold the parties to the agreement even when the result would be different from that which the court would otherwise have ordered.

    19 Thirdly and most relevantly for the purposes of this application the House of Lords held that a pre-nuptial agreement could not be allowed to prejudice the reasonable requirements of any children of the family who were under the age of 18 and that enforcement of a pre-nuptial agreement could be rendered unfair by the occurrence of contingencies unforeseen at the time of that agreement. 20. The judge held in this respect that the pre-nuptial agreement should not be given absolute weight by reason particularly of the needs of the children.

    Discussion

    20 I will deal with the husband's 11 grounds put forward in a slightly different order from the way he put them. First, in relation to the pre-nuptial agreement it seems to me that the principles enunciated in Radmacher were properly applied by the judge. The judge was clearly justified in deciding that the Venezuelan property should be taken into account as a result of the needs of the children. That is quite clear from the holdings in that case that I have already alluded to.

    21 Next, in my judgment the husband is wrong to suggest that the judge pierced the corporate veil by ignoring the commercial loan in Venezuela and holding that that loan would not have to be repaid. His holding was simply, as a matter of fact, that he did not believe the evidence that the loan would have to be repaid. He thought that there were connected parties involved and that in effect the loan was within the control of the husband. In effect the judge made a pragmatic finding on the evidence as to the realties of the financial position which he was in my judgment fully entitled to make.

    22 Next, as to the question of the trust interest of £20,000 received by the husband 11 months before the hearing, the judge was in my judgment entitled to take that into account, as part of the husband's skeleton argument effectively acknowledges.

    23 As to the accommodation costs that the wife had not paid amounting to £38,000, there was no requirement for him to take that into account directly in balancing the financial positions, and even if he was wrong about it, it seems in my judgment very unlikely to affect the ultimate outcome, which was determined by what he thought the wife could afford to pay the husband, bearing in mind the overwhelming needs of the children.

    24 As to the suggestion that the judge was biased and unfair to the husband and as to the suggestion that the judge in some way violated the husband's rights under article 1 protocol 1 or articles 6 and 14 of the European Convention on Human Rights, I have no doubt that all of these allegations are wholly unfounded. The judge gave a considered judgment in which he evaluated the arguments on both sides, as it seems to me fairly and appropriately. These allegations have no substance.

    25 Next, as to the question of the social services investigation upon which the husband wishes to rely as a change of circumstances within the Barder principles enunciated by the House of Lords, this as it seems to me is a speculative and highly contentious argument since none of the alleged investigations appear to have resulted in any action being taken. In any event they would not fall within the Barder principles.

    26 The husband then says that the judge failed to consider the likely insolvency that he may suffer in Venezuela. That is really the same point as was raised earlier into the repayability of the loans and for the reasons I have given has no real prospect of success.

    27 As for the argument that there was an undisclosed additional value to the pension in the sum of some £70,000, that, as I put to Mr Luppi in the course of his submissions, is a benefit to him; there was simply an error in the valuation of the pension. The additional value will be split 60/40 in accordance with the judge's order.

    28 Next, the arguments that Mr Luppi has raised concerning his wife's alleged new partner were not, it appears, disclosed to the judge and there is no reason to suppose that it would have had any effect on him. He dealt quite properly with the question of conduct in the early part of his judgment.

    29 Finally, as to the question of whether or not the judge was wrong to make the lump sum payment of £120,000 instead of the greater sum sought by the husband, I have considered the judge's reasoning and his calculations in full detail and I have absolutely no doubt that an appeal in relation to those findings has no real prospect of success. That being the test, therefore, it seems to me that this application for permission to appeal must be dismissed.

Judgment, published: 15/01/2014

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Published: 15/01/2014

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