Family Law Hub

X v X (Y and Z intervening) [2001] EWHC 11 (Fam)

  • BAILII Citation Number: [2001] EWHC 11 (Fam)

    IN THE HIGH COURT OF JUSTICE

    FAMILY DIVISION

    PRINCIPAL REGISTRY

    Royal Courts of Justice

    Date: Friday 9th November 2001

    Before:

    MR JUSTICE MUNBY

    (In Private)

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    X v X (Y and Z intervening)

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    Mr Martin Pointer QC appeared on behalf of the Applicant husband (the Respondent in the suit)

    Mr Jeremy Posnansky QC appeared on behalf of the Respondent wife (the Petitioner in the suit)

    Mr Irvine MacCabe appeared on behalf of the wife's brother and a firm of solicitors

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    Judgment

    MR JUSTICE MUNBY:

    1 This is an application by a husband (as I shall refer to him although the marriage has now been terminated by a decree absolute) requiring the wife, in accordance with Dean v Dean [1978] Fam 161, to show cause why minutes of order giving effect to an agreement said by him to have been arrived at between them should not be made an order of the court. Not altogether unusually in cases of this kind the wife resists the enforcement of her agreement. What is perhaps somewhat unusual is that, looked at from one perspective, the basis of her objection is not that the husband has agreed to pay her too little but that she has agreed to pay him too much.

    The facts

    2 The case is one of very substantial - on one view enormous - wealth. The husband and the wife are both Jewish. Religious, cultural and social obligations lie at the heart of the case. In the light of the arguments that have been addressed to me I need to go through the history, including the history of the negotiations, in some detail.

    3 The husband is in his forties, the wife in her thirties. They married in 1995. There are no children. The marriage had broken down by January 2001, when the parties separated. Shortly after their separation gossip appeared in the media about the wife's alleged relationship with another man. On 7 February 2001 the wife's solicitors wrote to the husband saying she had reached the conclusion the marriage could not be saved and indicating that she would like to formalise the separation and proceed to a divorce in a civilised manner. On 14 February the husband's solicitors replied that they were instructed to issue divorce proceedings based on the wife's alleged adultery. I should add that both the wife's solicitors and the husband's solicitors are very well known firms with very considerable experience and expertise in handling the divorce cases of the cosmopolitan and the very wealthy.

    4 On either 15 or 18 February (which is not altogether clear, though nothing turns on the point) there was a meeting between the husband and the wife's father. I shall have to return in due course to the evidence of what took place during this meeting but for the moment it suffices to record that on 19 February the wife's solicitor wrote a without prejudice letter to the husband's solicitors:

    I am instructed that your client met with my client's father yesterday, and that they reached agreement as follows;-

    1. Your client will give mine a Get forthwith.

    2. A payment will be made to your client of £500,000 in full and final settlement.

    3. The payment to your client will be made upon the Get being given or the Decree Nisi and the making of the Order, whichever is later.

    4. Your client will not issue a divorce petition. My client will issue a petition based on your client's unreasonable behaviour. Neither party wishes for there to be any unpleasantness and the particulars will be drafted in anodyne terms. I attach a copy of the proposed particulars for your client to review. If he objects to any of them, my client will agree to amend them. Please let me know.

    5. There will be no order as to costs, both with respect to the divorce and finances.

    6. There is to be a clean break between the parties.

    Please confirm by midday on Wednesday that this is all agreed and that this concludes all issues arising from the marriage and its breakdown.

    The above is conditional on Minutes being agreed and signed within the next seven days.

    5 The husband's solicitor replied on 20 February, again without prejudice:

    Thank you for your letter of 19th February upon which I have taken instructions.

    1. I am instructed that my client will give a Get once the £500,000 is paid into my client account which will be paid over (together with any interest thereon) upon the Get being obtained. Therefore once I have the funds and the Minutes of Order have been signed by our respective clients and firms, the parties can get the Get.

    2. So far as the divorce proceedings, I enclose herewith the particulars which my client will accept.

    3. I am instructed that part of the agreement was that your client would transfer to our client the Mercedes car number ... free of all encumbrances.

    I look forward to hearing from you.

    6. The wife's solicitor responded, still without prejudice, on 1 March:

    Your letter does not accord with the agreement reached.

    1. It was suggested that the money should be held by this firm pending payment to your client, in order to give your client comfort. It is not acceptable that the money should be paid to you in advance, nor that your client should benefit from the interest. The money will only be paid to your client when both the Get has been given, the Order made and the decree absolute granted (with an agreed time limit of 12 weeks from the date of decree nisi).

    2. Thank you for the amended particulars. I will now prepare a Petition. Please confirm that you are instructed to accept service.

    3. It is agreed that your client should retain the number plate, once he has returned my client's car to her.

    Please can you confirm that the above is now agreed and I will let you have draft Minutes.

    7 Further correspondence ensued. In a without prejudice letter dated 7 March the wife's solicitors told the husband's solicitors that the £500,000 was in fact being provided by the wife's brother. They commented that their client and her family Aare steadily losing patience at the continued attempts by your client to change the agreement reached.

    8 On 12 March the brother's solicitor wrote to the wife's solicitor, a copy of the letter going to the husband's solicitors:

    I have not been privy to your discussions with [the husband's solicitor] (or, possibly, to all the correspondence that has passed) and as such I cannot be certain that everyone (particularly [the husband] and his advisers) really understand the basics of this matter.

    The marriage has clearly broken down and a divorce is inevitable. There are no children to consider and accordingly the only issues to be determined are those of finance and the Get.

    [The wife] has no means of her own and few prospects of acquiring the same. She is not a beneficiary of any description of the beneficiary family trusts (or any other trusts for that matter) and has no expectation from that source. Throughout their marriage, [the husband] has provided for them both in the traditional way, assisted from time to time by gifts from [the wife's] father and brothers.

    In the circumstances, there can be no responsible suggestion that [the wife] should somehow be required to make financial provision for her husband as a consequence of their separation. If anything, the contrary is almost certainly the case.

    Notwithstanding, [the wife's] brother ... has agreed to pay [the husband] £500,000 in order to dispose of the matter without further ado and to secure the Get. This payment will be made gratuitously and is not a matter over which [the wife] has any control. The payment will pass upon the making of the decree nisi and the grant of the Get. I will be put in funds at this stage in order to secure the payment and will extend the appropriate undertakings.

    [The brother] is not prepared to proceed in any other way and has instructed me to make it clear that if the matter is not agreed and documented on this basis by close of business on Friday next, then he will withdraw his offer which will not be repeated in any circumstances. [The husband] should also be aware that at that point [the brother] will underwrite the pursuit of a more equitable solution.

    9 On 15 March the husband's solicitor wrote to the wife's solicitors, still without prejudice. On 22 March they replied without prejudice:

    1a. It is agreed that my client will issue a Petition in agreed terms, which she will pursue with expedition to decree absolute. I am issuing the Petition today.

    1b. It is agreed that the money should be paid to your client upon the decree nisi being declared, the financial order being made and the Get being given. The money will not be paid until all three events have occurred.

    1c. The £500,000 will be held by [the brother's solicitor] in his client account. Once I have advised you that the money is being held, undertakings will be provided by me and [the brother's solicitor] that the monies will be released to your client forthwith upon the three conditions having been satisfied and, pending that, the monies will not be released to anyone. Your client will then give the Get. For the avoidance of doubt, it is agreed that the first step should be for the money to be paid to [the brother's solicitor], followed by the undertakings, followed by your client giving the Get, signing the Minutes and my client pursuing the divorce, which your client will not defend.

    2. I will serve the Petition as soon as I have received it from the court. I will also then send you draft Minutes. Please note that the Petition does seek a costs order. Provided your client does not file a Notice of Intention to Defend, that costs application will not be pursued.

    3. It is agreed that your client will use my client's car until he has purchased a replacement (the end of this month should be quite sufficient) and he will retain the number plate.

    I look forward to hearing from you.

    10 On 26 March the husband's solicitor replied:

    Thank you for your letter 22nd March the contents of which we are agreed except that so far as paragraph 3 is concerned it is incorrect to suggest the end of the month is sufficient for my client to attain (sic) a new car. He will retain the same until he gets the lump sum.

    11 In the meantime on 20 March the wife had issued a divorce petition in the agreed form. On 26 March the husband gave an acknowledgment of service indicating that he did not intend to defend the petition.

    12 Correspondence followed between the solicitors in relation to the form of the minutes of order and of the undertaking to be given by the brother's solicitor. Initially it was proposed that there should be a longstop of 31 August 2001 for the operation of the undertaking. That was resisted by the husband's solicitor. In a letter dated 10 April the wife's solicitor suggested a longstop date of 30 September 2001, asserting that Athe agreement is and always has been conditional on a speedy conclusion.

    13 On 18 April the husband's solicitor wrote saying:

    The undertaking to expire on 30th September 2001 is acceptable provided there is liberty to apply because if there is any delay I shall not hesitate to seek relief from the Court.

    That drew no comment from the wife's solicitors in their reply, also dated 18 April. They said:

    My client and I have signed the Minutes, which are now agreed.

    14 The wife's notice of application for ancillary relief and her Form M1 are both dated 18 April. By then the form of both the minutes of order and the undertaking by the brother's solicitor had been agreed and the brother's solicitor had been put in funds. The undertaking given by the brother's solicitor is dated 24 April. The husband's Form M1 is dated 1 May.

    15 Early in May the husband's solicitor, having arranged to do so with the wife's solicitor, lodged all the papers with the court. On 9 May he wrote to the wife's solicitor to say that he had done so and that his client was due to go to the Beth Din the following day.

    16 On 10 May the husband granted a Get to the wife.

    17 The next day (11 May) an unanticipated problem emerged when the District Judge rejected the wife's petition:

    I am not satisfied that this cause should be entered in the Special Procedure List because:- The petition does not disclose a sufficient case of unreasonable behaviour to enable me to certify for a special procedure decree. Amendment to amplify or add to the particulars may remedy this, but in its present form the petition must be removed from the s.p. list.

    18 Following further correspondence between the solicitors a consent application dated 18 May for leave to amend the petition was lodged. Leave was given on 24 May and the amended petition dated 18 May and incorporating what the wife's solicitors called Astronger particulars was filed on 7 June. In this form the petition passed muster: a decree nisi was granted on 6 July followed by a decree absolute on 14 September.

    19 By then, however, unanticipated disaster had struck. On 18 June the same District Judge who had earlier refused to allow the petition to proceed now refused to approve the minutes of order.

    20 At this point I must go back to describe the documentation that had been prepared by the parties. For present purposes the relevant documents are the wife's and husband's Forms M1, the minutes of order and the undertaking given by the brother's solicitors.

    21 So far as material for present purposes the Form M1 requires the parties to give details of their (1) Capital Resources, (2) Net Income and (3) Pension. The wife in her Form M1 answered these three questions as follows:

    1 None.

    2 None as of right. I am supported on a voluntary basis by my father.

    3 None.

    She added: AI will live in my brother's house, where I am currently residing.

    22 The husband in his Form M1 provided the following answers:

    1 Property Net of Mortgage £600,000

    Banks £20,000

    Personal Possessions

    2 £75,000

    3 £60,000

    23 The Form M1 also contains a box containing the rubric "Other information - Give details of any other especially significant matters". Both the wife and the husband left this box empty.

    24 The undertaking given by the brother's solicitors, written on the firm's notepaper and addressed to both the wife's solicitors and the husband's solicitors, is in the following terms:

    We confirm that we hold Five Hundred Thousand Pounds (£500,000) in our clients account.

    We undertake to account to [the husband's solicitors] (for the benefit of [the husband] absolutely) by CHAPS payment for the above sum of Five Hundred Thousand Pounds (£500,000) within two working days of the later of:-

    1 The unconditional giving of the Jewish Get, and

    2 An order nisi being made in respect of the divorce proceedings issued by [the wife], and

    3 The making of a financial order in the above proceedings.

    This undertaking shall determine absolutely (and we will return the above funds to our clients) if all of the conditions have not been satisfied by 30th September 2001.

    25 The minutes of order as lodged with the court were in the following terms:

    UPON the Petitioner and the Respondent agreeing that the provisions of this Order are accepted in full and final satisfaction of all financial claims and claims in respect of any property whatsoever which either may be entitled to bring against the other in any jurisdiction howsoever arising.

    AND UPON the Petitioner and the Respondent agreeing that the terms of the agreement reached between them contained herein shall be binding upon them only in the event of an Order of the Court being made in such terms.

    AND UPON the Petitioner and Respondent agreeing that the contents of the property known as ... shall remain the absolute property of the party in whose possession they now are.

    AND UPON the Petitioner and the Respondent agreeing that neither of them has any legal or equitable interest in property or assets owned by the other save as provided for in this Order.

    AND UPON the Respondent undertaking:-

    a) To return the Petitioner's Mercedes car to her forthwith upon receipt of the lump sum referred to below and to indemnify the Petitioner in relation to any damage or liabilities which may be incurred with respect to the vehicle whilst it is in his custody.

    b) To apply to the Beth Din of London for a Get forthwith and thereafter to forthwith take all such steps that may be directed by the Beth Din to complete a Get.

    AND UPON the Petitioner undertaking to take all such steps as are necessary to give effect to the Get expeditiously.

    AND UPON the parties agreeing that the Respondent is to retain the car number plate ...

    BY CONSENT AND SUBJECT TO DECREE NISI BEING MADE ABSOLUTE IT IS ORDERED THAT:-

    1) The Petitioner do pay or cause to be paid to the Respondent a lump sum of £500,000 forthwith upon this Order being made and the Get having been given, whichever is the later, and subject to the Respondent having complied with his undertakings;

    2) Upon receipt of the payment at paragraph 1 above the Petitioner=s and Respondent's claims for financial provision and property adjustment orders do stand dismissed and neither the Petitioner nor the Respondent shall be entitled to make such further applications in relation to the marriage under the Matrimonial Causes Act 1973 Section 23(1)(a) or (b).

    3) Upon compliance of paragraphs 1 and 2 above, pursuant to the Inheritance (Provision for Family and Dependants) Act 1975, Section 15, the Court considering it just so to order, neither the Petitioner nor the Respondent shall be entitled on the death of the other to apply for an order under Section 2 of that Act.

    4) There be no order as to costs.

    5) There be liberty to apply as to implementation and timing of the terms of this Order.

    26 It will be noted that although the minutes of order refer to the Get (and indeed make it clear that the giving of the Get was to precede payment to the wife) there was no reference in the minutes of order to the undertaking from the brother's solicitors. Nor was a copy of the undertaking lodged with the court. All that the District Judge had were the two Forms M1 and the minutes of order.

    27 The District Judge returned the minutes of order heavily annotated with his suggested amendments, explained in an attached Note. The details do not matter for present purposes. What does matter is what the District Judge said in paragraph 1 of his Note:

    Under Livesey v Jenkins 1985 AC 424 I must, before making any consent order, be satisfied that it meets the criteria in s. 25: hence the need for Form M1, including, where appropriate, the section headed "Other information".

    Please explain why the Petitioner's claims are proposed to be dismissed when she has no capital nor any income apart from her father's bounty; why in those circumstances, and after a marriage of only 5 years, the Respondent, who already has capital of over £600,000 and a net income of £75,000, is to receive from her a lump sum of £500,000; and how she proposes to raise that sum.

    28 That was on 18 June. On 22 June the husband's solicitor wrote to the wife's solicitor:

    "could you re-do the Minutes of Order leaving out verbiage and doing precisely what the District Judge wants which will simplify everybody's task.

    Please confirm it is agreed that notwithstanding the provisions of the Court Order our client will received (sic) the £500,000 on pronouncement of Decree Nisi. I understand that the amended petition has been approved and is waiting the District Judge's SP Certificate.

    Please let me hear from you without delay."

    29 Having got no response they wrote again on 27 June threatening "to issue an application for a particular form of wording".

    30 The wife's solicitors replied the same day (27 June):

    The current position is that my client, and her family, are considering their position.

    Given the Judge's comments, I do not see what application you could make, nor do I agree that you would meet any success.

    I will revert to you as soon as I have instructions.

    31 The husband's solicitors responded on 2 July enclosing revised minutes of order:

    I enclose herewith the Minutes of Order which should now be sent to the Court. I require them to be signed by you and returned to me urgently. You must now put in a proper Form M1, not a bogus one, regarding your client's financial position.

    All the problems have stemmed from your client not agreeing that my client should divorce her for adultery when it was being committed, your preparing a whole load of unnecessary recitals and finally not doing a proper M1.

    The revised draft omitted all reference to the Get. It did not include all the amendments suggested by the District Judge.

    32 Having had no response the husband's solicitors followed this up with a further letter on 5 July:

    The Decree Nisi will be granted tomorrow. If you have not signed the new Minutes of Order I have prepared by close of business tomorrow I shall on Monday 9th July issue a summons to show cause why the Minutes should not be made an order of the Court and ask for indemnity costs.

    33 The wife's solicitors replied on 9 July, the decree nisi having in the meantime been granted on 6 July:

    Firstly, dealing with your allegation that my client's form M1 is Abogus. This is entirely unsubstantiated. What evidence do you have to show that the information on the M1 is incorrect? My client's M1 sets out the true position, which is that she has no funds or assets of her own and is supported by her family.

    Whilst we are on the subject of the forms M1, your client's (a copy of which was never provided to me, but which I obtained from the Court), is deficient. In the capital section it ascribes no value at all to your client's company. This is clearly incorrect.

    Secondly, you have said that "all the problems" have been caused by my client objecting to your client issuing a Petition relying on her adultery. This is entirely incorrect. We agreed early on that my client should petition yours on the basis of his unreasonable behaviour. I supplied a number of inoffensive, anodyne draft particulars. You specifically requested that I deleted the three strongest ones, which left only two. I acceded to your request. The District Judge put a stop on the Petition, as he felt that the allegations were too weak. You wrote to me at the time expressing great indignation at the District Judge's decision. You made it clear you thought he was wrong. We then agreed an amended Petition, to include some further particulars. There is no sense whatsoever in a finger pointing exercise to determine whose fault the delay was. You have also said that problems have been caused by this firm preparing unnecessary recitals to the draft Minutes of Order. May I remind you that you agreed the Minutes of Order as drafted. I simply do not agree that the recitals were unnecessary. I would refer you to our correspondence in relation to the Get.

    You are now saying that on Monday you shall apply for an Order. I have to say that, given the Judge's comments, any application you make is bound to fail.

    You have sent me new Minutes of Order to sign. I had told you on 27 June 2001 that my client and her family were considering their position. They have now done so. I have been informed by [the brother's solicitor] that [the brother] is no longer willing to make the £500,000 lump sum available (albeit, he immediately acknowledged that his undertaking of 24 April will remain in place until 30 September 2001). My client's hands are tied. She is, in the District Judge's words, reliant on her father's (and other family members') bounty. She has no assets or funds of her own. She is simply no longer in a position to pay any lump sum to your client. This is a matter of great regret to her. However, the fact is that the ... family (and indeed my client) consider that a fundamental term of the agreement reached was that matters would be concluded swiftly and amicably. Your client's approach to this case, through you, has been aggressive and unpleasant. An enormous amount of ill will has been built up as a result. Without her family's support, my client is in no position to agree to the Minutes.

    There is also the very significant problem of the District Judge's comments on the Order. Whilst you seek to imply that the Judge merely criticised its drafting, that is demonstrably incorrect. The District Judge was not willing to endorse the agreement, as he was not satisfied that your client was entitled to any lump sum, that my client had the means to pay, and that her maintenance claim should be dismissed. There are three very important matters that remain in issue.

    On the basis of the above, I cannot imagine how you can expect the Court to impose an Order in the terms of the Minutes.

    34 The same day (9 July) the husband's solicitors issued the first of the two applications which are now before me. It sought an order that the wife show cause why the minutes of order in the form in which they had been enclosed with the letter of 2 July should not be made an order of the court agreement having been reached between the parties. The notice of application contained what in the circumstances I can only describe as the preposterous assertion that the probable length of the hearing, to be attended by counsel, was 15 minutes.

    35 On 13 July the husband's solicitors wrote to the brother's solicitors:

    Unfortunately [the wife] is seeking now to renege upon the agreement that has clearly been reached between the parties.

    We have issued an application to show cause why the agreement should not be made an order of the Court which will be heard on 1st August. If the application is opposed, there will have to be a full hearing which may or may not take place before the end of September 2001.

    In the circumstances, we require your firm's undertaking that the undertaking of 24th April 2001 will be extended beyond the 30th September 2001 and be until such time as either written agreement is reached or the Court has determined our client's application.

    If we have not heard from you by Monday 23rd July we shall seek an injunction against your firm on 1st August and ask for costs.

    36 The brother's solicitor replied on 16 July:

    Our client is not a party to the current proceedings between his sister and your client.

    In accordance with the instructions of our client, we extended an undertaking to [the wife's solicitors] and yourselves on the 24th of April last. To enable us to do so, our client paid to us the sum of £500,000 which we hold on deposit.

    We are pleased to confirm (as if it is necessary) that we are bound by our above undertaking and will act strictly according to the terms thereof.

    We have no instructions to extend our undertaking.

    If it is really your intention to seek an injunctive remedy against us on the 1st of August, then please so confirm and we will arrange to be represented accordingly.

    37 On 18 July the husband's solicitors issued the second of the two applications which are now before me. As amended on 9 August it seeks an order against the brother's solicitors (not, be it noted, against the brother) and, "insofar as is necessary", the wife that the sum of £500,000 be retained by the brother's solicitors and held to the order of the court pending the outcome of the proceedings.

    38 The brother's solicitors responded on 20 July:

    We do not see how your client's application against this firm can possibly succeed and consider the same to be an abuse of process. The Court does not have jurisdiction to go behind the very specific terms of the undertaking. Indeed, the District Judge in his note of the 18th June 2001 effectively states such to be the case. Please see the comments at paragraph 5 of the District Judge's note and in particular, in the sub-paragraph thereof. Clearly the problem is not of our making but results from the Court's views on the Consent Order generally as set out in the said note.

    Whilst we understand that you are clearly aware of our position, we would, for the record (and for the avoidance of any doubt), make it clear that we acknowledge and accept (without reservation) that our undertaking of 24th April 2001 will remain in place until 30th September 2001.

    Your client's application will be opposed.

    39 They followed that up with another letter on 26 July:

    Whilst the Court may have jurisdiction to preserve assets, the funds held by us are not an asset of [the wife]. Such funds belong to her brother, for whom we act, which has been known to you from the outset and is clear from the terms of our undertaking.

    We have no wish to be drawn into other issues that are of no concern to our client.

    40 The husband's solicitors responded the same day:

    You have missed the point. We say there was clearly an agreement between the parties and the £500,000 you hold is part of, and security for, that agreement. There is no other way of looking at it.

    41 Both applications came before a District Judge on 1 August and were listed for hearing (time estimate 1 day) on the first open date before 30 September. The District Judge made a note saying "I deplore this misuse of the short summons list ... the applications are an abuse of the short summons list".

    42 On 14 September the decree was made absolute. On 19 September the wife's solicitors wrote to the husband's solicitors asserting in answer to the application dated 18 July (as amended on 9 August) that

    The funds held by [the brother's solicitors] do not belong to the [wife], nor are they under her control.

    43 The matter was fixed for hearing on 26 September marked "at risk". On 25 September the parties became aware that there was no judge available to hear the matter the following day. By a letter the same day (25 September) the husband's solicitors sought an undertaking from the brother's solicitors that the £500,000 would be held in their client account pending the conclusion of the husband's applications, for which a hearing had by then been offered for 23/24 October. The brother's solicitors replied later the same day:

    Whilst this latest development is unfortunate, we are unable to vary our undertaking in the manner that you request or at all.

    44 On 26 September HHJ Hamilton heard the husband's application for an injunction. As subsequently before me the husband was represented by Mr Martin Pointer QC, the wife by Mr Jeremy Posnansky QC and the brother's solicitors by Mr Irvine MacCabe of counsel. I have been shown transcripts both of the argument and of Judge Hamilton's judgment. At the end of the hearing he granted an injunction forbidding the brother's solicitors from dealing with the £500,000 "pending determination" of the husband's application dated 9 July. Judge Hamilton also gave the brother's solicitors leave to be heard on 23 October on the question of the continuation of the injunction. He gave them permission to appeal the injunction limited to the question of whether the court had jurisdiction to grant it.

    45 On 19 October the brother's solicitors wrote to the husband's solicitors:

    The undertaking previously given by us has now expired and we are no longer bound by its terms albeit the funds, the subject of the undertaking, are presently frozen in accordance with the order of the 26th September 2001.

    Our client maintains that no part of the funds, the subject of the undertaking and Court order, are the property of his sister ... and that she has no claim or title to them.

    Consequently, our client does not accept that your client will be able to attach a claim to the funds in the event that [the wife] is ordered to make any payment to your client at the hearing on the 23rd October next.

    To the extent that you may disagree with the above, our client has instructed us that should your client's present application against [the wife] succeed, that we may agree to a continuance of the order made against [the brother's solicitor] and this firm on the 26th September last subject to the following terms:-

    1. That our client intervene into the action.

    2. That your client makes an application maintaining a claim to the funds which application must be made within 28 days of the date an order is made against [the wife] in the present application; and

    3. Providing such application is made in accordance with 2. above, until the application is determined or a further Court order.

    Should an order be made in favour of your client at the hearing on the 23rd October, the above proposal protects your client and the funds.

    Our client's proposal is made to avoid unnecessary costs being incurred and is made on the basis that our client's rights are reserved.

    46 The husband's solicitors replied on 22 October:

    The orders that we will be seeking from the judge tomorrow are:

    1. An order of satisfaction of [the husband's] ancillary relief claim in accordance with the draft that has been lodged at Court.

    2. An order that the funds held by your firm as security for the agreement between [the husband and the wife] be paid over to [the husband] forthwith in satisfaction of the lump sum part of the Order.

    3. Provision for interest on that lump sum to include for the avoidance of doubt all interest accrued on those monies since they were deposited with your firm or alternatively since the earliest date the order been made by consent could have been achieved.

    Whether or not you turn up at Court tomorrow must be a matter for you; but we will be asking for the above orders to be made and drawn in such a way that they are binding on your firm.

    The hearing

    47 The matter came on before me on 23 October. Mr MacCabe now appeared instructed on behalf of the brother as well as the brother's solicitors. The evidence before me consisted of two sworn statements by the husband, one dated 17 July and the other 11 September, and a sworn statement by the wife dated 20 September (previously exhibited unsworn to a sworn statement of her solicitor dated 31 July). There was no application to cross-examine and neither party gave oral evidence. I had no evidence from either the wife's father or her brother or his solicitors.

    48 Notwithstanding opposition from Mr Pointer I agreed that the wife's brother should be given leave to intervene. After a certain amount of debate it was agreed that I should deal initially with the husband's claim against the wife, leaving to a future occasion the question of whether, now that the 30 September deadline has passed, the husband can get his hands on the £500,000. Mr MacCabe agreed that, at least until I had determined the first issue, the injunction granted by Judge Hamilton should remain in place. He expressly reserved the right to apply to discharge the injunction once I have given judgment on the first issue.

    49 The hearing concluded on 24 October when I reserved judgment. I now (9 November) give judgment on the first issue.

    The parties' resources

    50 There is no doubt that the wife's family is very wealthy. The husband believes that their wealth amounts to some hundreds of millions of pounds. Whether that is so or not I have no means of knowing. It is probably safe for present purposes to assume that they are worth many, many millions of pounds. The wife in her evidence refers to the family having "yachts and villas abroad".

    51 The husband speculates as to the extent of the wife's wealth, saying in his first sworn statement,

    it is plain to me that she is the beneficiary of very substantial family funds. As to whether and to what extent funds are held by [her] in trusts or in other family entities is not something to which I have been privy. What is plain is that she has had (and as I believe has and will continue to have) access to great wealth.

    He also asserts that she has various specific assets: bank accounts both in this country and in Switzerland containing substantial cash accumulations; jewellery insured for a sum in excess of £500,000; household effects insured for £400,000; and four motor cars, a Porsche, a Range Rover and two Mercedes.

    52 The wife's evidence is that, apart from some jewellery, worth less than the husband believes, and one car, a Mercedes, she has no assets of her own. She accepts that she is provided with credit cards which are settled for her by her family. The other cars of which she has the use and the house in which she lives (and its contents) all belong, she says, to her family. She denies that she has any bank account in Switzerland. Her bank account in this country is funded, she says, by her family and any money in it is theirs. Nor, she says, does she have any interest in any family funds, not even as a discretionary beneficiary. She has never worked and claims always to have been supported - plainly at a very high level - by her family's generosity, both before and even during her marriage. She describes her family as having been extremely generous towards us as a couple.

    53 There are some specific indications of the extent of that generosity. The wife says that she spent about £250,000 (provided by her family) in completely refurbishing and redecorating the first matrimonial home in which she and her husband lived. It is common ground that in 1998 the wife's father provided her with a fund of either $500,000 (her figure) or £500,000 (the husband's figure) to enable her to trade as a hobby on Nasdaq. She is now living in what is plainly a very valuable house, according to the husband - and not denied by her, though she makes no admissions - worth many millions of pounds. It is owned, she thinks, by her brother, who pays all the running costs, though the contents, she says, belong to her parents. On top of that, of course, on her own case her brother has been prepared to fund the £500,000 agreed to be paid to the husband.

    54 The husband in his Form M1 admitted to assets worth £620,000, a pension fund worth £60,000 and an income of £75,000. The wife asserts that he has other assets including a house in France, money in Swiss bank accounts, representing his inheritance from his mother and the proceeds of sale of two properties, and shareholdings in three companies. Most of this is disputed by the husband.

    55 Mr Pointer submits that even if (which is not admitted) the wife has no real assets of which she is either the legal or beneficial owner, and even if (which again is not admitted) she has no interests - not even discretionary interests - under any family trusts or similar arrangements, she nonetheless has very substantial financial resources as that phrase is used in section 25(2)(a) of the Matrimonial Causes Act 1973.

    56 In this connection I was referred to a number of authorities: Howard v Howard [1945] P 1 at pp 4, 5-6 and 7, J-PC v J-AF [1955] P 215 at pp 230-231 and 247-248, B v B (Financial Provision) (1982) 3 FLR 298 at pp 303C-G and 304F-305B and Browne v Browne [1989] 1 FLR 291 at pp 294D-H and 295D. I do not, however, think that I need refer to any of them, for the final authority to which I was referred, Thomas v Thomas [1995] 2 FLR 668, seems to me to be, and indeed to have been intended by the Court of Appeal to be, an authoritative summation of the law in the light not merely of the authorities to which I was referred but also of a number of other authorities listed by Waite LJ at p 671B.

    57 In Thomas Waite LJ said this at p 670D:

    The discretionary powers conferred on the court by the amended ss 23-25A of the Matrimonial Causes Act 1973 to redistribute the assets of spouses are almost limitless. That represents an acknowledgment by Parliament that if justice is to be achieved between spouses at divorce the court must be equipped, in a society where the forms of wealth-holding are diverse and often sophisticated, to penetrate outer forms and get to the heart of ownership. For their part, the judges who administer this jurisdiction have traditionally accepted the Shakespearean principle that "it is excellent to have a giant's strength but tyrannous to use it like a giant". The precise boundaries of that judicial self-restraint have never been rigidly defined - nor could they be, if the jurisdiction is to retain its flexibility. But certain principles emerge from the authorities. One is that the court is not obliged to limit its orders exclusively to resources of capital or income which are shown actually to exist. The availability of unidentified resources may, for example, be inferred from a spouse's expenditure or style of living, or from his inability or unwillingness to allow the complexity of his affairs to be penetrated with the precision necessary to ascertain his actual wealth or the degree of liquidity of his assets. Another is that where a spouse enjoys access to wealth but no absolute entitlement to it (as in the case, for example, of a beneficiary under a discretionary trust or someone who is dependent on the generosity of a relative), the court will not act in direct invasion of the rights of, or usurp the discretion exercisable by, a third party. Nor will it put upon a third party undue pressure to act in a way which will enhance the means of the maintaining spouse. This does not, however, mean that the court acts in total disregard of the potential availability of wealth from sources owned or administered by others. There will be occasions when it becomes permissible for a judge deliberately to frame his orders in a form which affords judicious encouragement to third parties to provide the maintaining spouse with the means to comply with the court's view of the justice of the case. There are bound to be instances where the boundary between improper pressure and judicious encouragement proves to be a fine one, and it will require attention to the particular circumstances of each case to see whether it has been crossed.

    58 Glidewell LJ at p 677H derived the following principles from the authorities:

    (a) Where a husband can only raise further capital, or additional income, as the result of a decision made at the discretion of trustees, the court should not put improper pressure on the trustees to exercise that discretion for the benefit of the wife. (b) The court should not, however, be "misled by appearances"; it should "look at the reality of the situation". (c) If on the balance of probability the evidence shows that, if trustees exercised their discretion to release more capital or income to a husband, the interests of the trust or of other beneficiaries would not be appreciably damaged, the court can assume that a genuine request for the exercise of such discretion would probably be met by a favourable response. In that situation if the court decides that it would be reasonable for a husband to seek to persuade trustees to release more capital or income to him to enable him to make proper financial provision for his children and his former wife, the court would not in so deciding be putting improper pressure on the trustees.

    59 Mr Pointer says that, although the wife, as he would have it, has not made full disclosure of her resources, I can properly infer, not least from the matters summarised in paragraphs [52] and [53] above, that her available resources are very substantial. He says that the true scale of what resources are available to the wife is unknown and will probably never be known. But, he submits, were it necessary for me to come to such a finding, I could, consistently with Thomas, properly conclude on the evidence that the wife's resources are more than sufficiently substantial as to justify an order in favour of the husband in the sum of £500,000.

    60 But, says Mr Pointer, that does not really matter for present purposes. The husband, he says, was entitled to take the view that he will never get to the bottom of what the wife's resources are and, in those circumstances, to settle on the available terms. Indeed, says Mr Pointer, this is a case in which, although each party's position is that the other has failed to make full and frank disclosure (see paragraphs [51], [54] and [55] above), neither spouse has thought it necessary to investigate the other's finances in detail before reaching agreement. Both, he says, were content to reach agreement on the basis of what they knew. This was in the circumstances an entirely appropriate and sensible approach. And, he submits, the court should not impede such an approach.

    61 I agree. I am considering a Dean v Dean application. In that context, as it seems to me, it is not at the end of the day vital for me to determine what her family is actually worth or to reach a concluded view as to the scale of the wife's financial resources. What is important, as it seems to me, is that (i) the husband believed his wife to have access to very substantial resources and her family to be worth hundreds of millions of pounds, (ii) the wife and her family saw no reason to seek to persuade him otherwise, (iii) both parties were prepared to strike a deal on a basis which, if properly analysed, assumed that the wife did indeed have available to her substantial resources, and (iv) both parties were content to reach agreement on the basis of what they knew, or thought they knew, of the other's resources and without any detailed investigation of each other's finances.

    62 I should add that, were it necessary for me to come to such a finding, I would, applying the principles in Thomas, be prepared to conclude on the evidence before me that the wife does indeed have available to her very substantial resources and that her resources, whatever they may be, are more than sufficiently substantial as in principle to justify an order in favour of the husband in the sum of £500,000.

    The Get

    63 The nature and significance of the get are well known. The get and the get procedure were described by Wall J in Berkovits v Grinberg (Attorney-General Intervening) [1995] Fam 142 and again in N v N (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 FLR 745. In the latter case Wall J said at p 750D:

    (1) A get, to be valid, must be a mutually consensual transaction. The husband must freely deliver the get, and the wife must freely receive it. (2) Only the husband can initiate the get process. (3) A get obtained by compulsion on either the husband or the wife is invalid in Jewish law.

    He then noted Professor Freeman's observation that the consequences for a wife if her husband refuses to deliver a get which she is willing to receive are much more serious than they are for a husband whose wife refuses the delivery of a get: "The consequences of failing to obtain a get can be cataclysmic for a religious Jewish woman, but if her husband refuses to grant her one, the consequences for him are minor in comparison."

    64 The wife's evidence, which is not challenged on this point, is that she comes from a religious family. It was, she says, and as her husband well knew, extremely important not just to her but to all of her family, culturally, socially and religiously that she receive a get from her husband. She says that he realised that withholding the get gave him an important and valuable bargaining tool against her and her family. She sees the position adopted by the husband when he met her father in February as Atantamount to blackmail. In her sworn statement she says:

    AI deplore the fact that the Respondent has attempted to pressurise my family into paying him an extortionate amount of money, essentially to "buy" his silence and co-operation. He has taken advantage of and exploited my father's decency and his vulnerability as an Orthodox Jewish man (in being desperate that I receive a Get and that matters relating to our family and the breakdown of our marriage not be discussed with third parties) and has been excessively greedy in his demands. In his demand for £500,000, the Respondent was seeking to put himself in a far stronger financial position than he was before.

    The meeting in February

    65 The wife was not present at the meeting. Her account of it derives from what her father told her. In her sworn statement she says:

    My father had three principal aims. First, that the Respondent should give me a Get. Secondly, my father's intention was to reach an agreement that would ensure that matters remained amicable, that neither party should feel bitter or hard done by, and that the breakdown of our marriage and our family affairs should not be discussed with third parties. Thirdly, my father wanted an agreement that everything would be finalised with speed and not become drawn out. I understand from my father that the meeting was amicable, and that these three matters were made very clear to the Respondent.

    It was my understanding prior to the meeting taking place that my father was going to offer a sum of money to the Respondent in order to achieve the above aims. It was clear to me beforehand that the Respondent was going to ask for money because of the things he had said to me, and the rumours that had reached me. It was not my wish that the Respondent should be paid any money. I did not believe he had any financial claim against me or my family, I felt he had benefited enough from my family's generosity during our marriage. Whilst I was mindful of the importance to my father of obtaining a Get, I could not condone a payment to the Respondent to secure this. I felt that the position adopted by the Respondent was tantamount to blackmail. My father told me that he would reach whatever agreement he saw fit, even if this were to involve a cash payment to the Respondent.

    My father returned from the meeting to tell me that he had agreed to pay the Respondent a sum of £500,000. Frankly, I was quite astonished at this figure. By no stretch of the imagination could the Respondent have a legal claim for such a sum. However, since my father appeared to have brokered an agreement whereby the divorce, and the Get would now be resolved quickly and amicably, I went along with the agreement. My father told me that my brother ... would be providing the funds.

    66 The husband in his first sworn statement says that the agreed figure of £500,000 was intended to compensate him in relation to the sale of the former matrimonial home, for monies that he had put towards the second matrimonial home and for "a share of the matrimonial assets including monies which I had spent upon his daughter".

    67 I need not go into laborious detail but it appears to be common ground (i) that prior to his marriage the husband had owned, jointly with his brother who had a 17% share in it, what became the first matrimonial home, (ii) that following the marriage the wife's father bought out the husband's brother's share for £90,000, (iii) that the property was sold in 2000 for £1,100,000 (according to the husband it would now be worth £1,400,000), (iv) that the husband received a net sum of £600,000 from the proceeds of sale, after discharge of the mortgage and payment of some £188,000 to the wife's father in settlement of his share, and (v) that the husband put about £45,000 of his own money towards equipping the second matrimonial home.

    68 According to the wife, basing herself on what her father told her, the husband said that he wanted to buy a property costing £1,100,000 (the sale price of the first matrimonial home) and that he accordingly needed £500,000 as a top-up to the £600,000 he had already received. According to the husband the £500,000 was roughly calculated on the basis of restoring him financially to the position he would have been in if the first matrimonial home had never been sold: specifically, by adding to the "loss" of £300,000 on the sale of the property (that is, the difference between the sale price of £1,100,000 and its current value of £1,400,000), the £90,000 which would not have had to be paid out to the wife's father, the £45,000 he spent on the second property, and the £50-60,000 which he says he would have to spend in costs, fees and stamp duty to buy another property.

    69 In his second sworn statement the husband describes the negotiations with the wife's father as follows:

    I explained to him that I had sold the [first matrimonial home] and suffered as a consequence of the Petitioner's wish to move to [the second property]. Furthermore I had made various payments in relation to items at [the second property]. Eventually we agreed a figure of £500,000 referred to in paragraph 17 below. The Petitioner's father is a hard-nosed businessman. He accepted it was fair. However, the Petitioner's father insisted that the payment would only be made on the basis that I did not issue divorce proceedings on the grounds of the Petitioner's adultery and therefore the Petitioner had to divorce me and I had to agree to give her a Get. That was all part and parcel of the agreement which I accepted. There is a suggestion by the Petitioner that somehow I blackmailed the family by refusing to give a Get. That is complete nonsense. I did not raise the subject of the Get at all. The meeting ended amicably and I drove the Petitioner's father back to [his home]. I did say on the way back that I hoped that the Petitioner would not speak publicly about the end of our marriage and about our discussions. I felt it should be kept private. He fully agreed but he said "You know what [the wife] is like, she is a gossip" and he doubted that she would be silent.

    70 He adds, with reference to the letter which his solicitors had written on 14 February (see paragraph [3] above):

    I think that prompted the ... meeting ... which was initiated by the Petitioner's father and resulted in the agreement referred to earlier in this paragraph. I now know, but did not at that time, that if I had obtained a divorce on the grounds of the Petitioner's adultery she would not have been allowed under Jewish law to marry the adulterer and any children she had with the adulterer would not be recognised by the Jewish religion.

    The wife resiles from the agreement

    71 According to the wife, by the time the District Judge's decision on 18 June became known,

    my family had become increasingly concerned by the acrimony being generated by the Respondent, both in his solicitor's correspondence and by talking to anyone who would listen about how appallingly he felt he was being treated by me and my family. Rumours had been reaching them. The Jewish community is very tightly knit and this was causing particular embarrassment to my father. It was a clear condition of the agreement reached between the Respondent and my father that the Respondent would assist in pursuing a divorce and settlement amicably, expeditiously and quietly, and that in public he would restrain from making negative comments about me or my family. The Respondent's behaviour was in blatant disregard of this. My family came to feel that the central purpose of the agreement had therefore fallen away. I understand and accept their point of view.

    Having given the matter great and prolonged consideration, they told me that they were no longer willing to fund payment of the lump sum to the Respondent. This was communicated to the Respondent's Solicitors. In the circumstances, no response to the District Judge's note, at that time, was appropriate.

    72 She adds:

    AI do not seek to hide behind my family's wealth. Such wealth that there is belongs to them, not me. If truth be known, I would probably even now, prefer my family to pay the Respondent so that I can put our marriage behind me and get on with my life, but I am unable to persuade them to do so as I have no legal right to the money, and I believe that the Respondent's conduct, described above, justifies their position. I have lived, and continue to do so, on their bounty and generosity. I have no wealth of my own and no legal right to any of my family's assets. The reason my family are no longer willing to provide the money is because the Respondent has breached the conditions precedent of the agreement, by creating unnecessary acrimony by virtue of his confrontational and aggressive stance, and by virtue of his attempts to muddy my name, and that of my family, in our community. As I have said, whilst I would like to be rid of all these problems and get on with my life, I believe that my family's position is truly justified and reasonable.

    73 And again:

    In the circumstances whilst, in some senses, I would prefer to reach agreement with the Respondent and for my family to provide the £500,000 that was initially agreed, I have no power to force my family to go along with this, and I understand and respect their position. In any event, my hands are, quite simply, tied. In the circumstances, I cannot see how the Court could make the Order that the Respondent asks.

    74 As Mr Pointer observes, all this was being said by the wife in a statement provided in draft on 31 July and sworn on 20 September - that is, at a time when the £500,000 in question was actually held by the brother's solicitors subject to their undertaking. It may be that by then her family was, as she says, "no longer willing to fund payment of the lump sum", though they were by then committed to doing so, indeed had already done so. Be that as it may, I simply fail to understand how she can have been saying, at a time when the money was held by the solicitors subject to the undertaking, that she was "unable to persuade" her family to pay and that she had "no power to force" her family to provide the £500,000.

    The legal framework

    75 As I have said, the husband=s application is one requiring the wife, in accordance with Dean v Dean, to show cause why the minutes of order giving effect to the agreement arrived at between them should not be made an order of the court. Mr Pointer submits that I should make what he calls a summary order without either the parties or the court embarking upon full-blown ancillary relief proceedings.

    76 The starting point, and this is common ground, is that there is no public policy objection to the agreement at which the parties have arrived, notwithstanding that it provides amongst other things for the parties to divorce on agreed terms.

    77 Indeed, I would say, if anything quite the contrary.

    78 In this area of the law there were three distinct but related cases in which the common law treated a contract or any other form of inter vivos or testamentary disposition as being unenforceable on grounds of public policy: (i) agreements between spouses or intending spouses for future separation; (ii) certain collusive and other agreements in contemplation of divorce; and (iii) agreements purporting to oust the jurisdiction of the court. In each case equity, following the common law, similarly treated the contract or disposition as void and accordingly refused to decree specific performance of the "obligation". However, none of these doctrines gives rise to any difficulty in the present case.

    79 It remains the rule that any agreement or arrangement entered into by a husband and wife, whether before or during the marriage, which contemplates or provides for the separation of husband and wife at a future time is against public policy and void: see N v N (Jurisdiction). The agreement in the present case is not such an agreement. In contrast, a contract which provides for or regulates a present separation is, and always has been, in principle perfectly lawful and enforceable: see, for example, Wilson v Wilson (1845) 14 Sim 405, (1848) 1 HLC 538, and Hyman v Hyman [1929] AC 601. Thus, as Mr Pointer observes, as early as 1864 it had been held in Rowley v Rowley (1864) 3 Sw&Tr 337, (1866) LR 1 Sc & Div 63, that an agreement not to petition for divorce was in principle enforceable.

    80 However, at common law any arrangement or agreement between parties to divorce proceedings was invalid if made collusively or with a corrupt intention: see Hope v Hope (1856) 22 Beav 351, (1857) 8 DeGM&G 731. So, as Ewbank J pointed out in N v N (Divorce: Agreement not to Defend) [1992] 1 FLR 266 at p 268C, an agreement not to defend a petition would, notwithstanding Rowley, have been collusive, contrary to public policy and of no effect. This rule has, however, been transformed by section 1(2)(d) of the Divorce Reform Act 1969 and collusion no longer invalidates such a contract: Sutton v Sutton [1984] Ch 184 and N v N (Divorce). There is, therefore, no longer anything intrinsically objectionable either to an agreement not to petition for divorce or an agreement not to defend the other spouse=s petition for divorce.

    81 A contract which purports to deprive the court of a jurisdiction which it would otherwise have is contrary to public policy. Thus, a spouse cannot validly agree, whether expressly or impliedly, not to apply to the court for maintenance or other forms of ancillary relief. Such a stipulation is contrary to public policy and unenforceable: Hyman v Hyman, Sutton v Sutton and N v N (Jurisdiction). This rule remains, but can have no application in the present case where the agreement expressly contemplates the obtaining of the court's approval.

    82 Public policy as a possible objection out of the way, I need not take up time considering the precise status of the agreement pending its approval by the court, a matter considered in Amey v Amey [1992] 2 FLR 89 and in relation to which I was referred to Xydhias v Xydhias [1999] 2 All ER 386. Counsel were correctly agreed that nothing turns on this point.

    83 I turn to the key authorities.

    84 The leading authority is, of course, Edgar v Edgar [1980] 1 WLR 1410. In that case, having referred to Hyman v Hyman, Wright v Wright [1970] 1 WLR 1219 and Brockwell v Brockwell [1975] CAT 75/468, Ormrod LJ continued at p 1417C:

    "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."

    85 Having referred to an observation of Sir Gordon Willmer in Wright at p 1224G, Ormrod LJ continued at p 1417G:

    Adapting that statement to the present case, it means that the wife here must offer prima facie evidence of material facts which show that justice requires that she should be relieved from the effects of her covenant in clause 8 of the deed of separation, and awarded further capital provision.

    86 The Lord Justice then set out what Eastham J had said at first instance, summarising the law in five propositions:

    (1) ... (and this is not contested) notwithstanding the deed of April 1, the wife is entitled to pursue a claim under section 23 of the Act. (2) If she does pursue such a claim, the court not only has jurisdiction to entertain it but is bound to take into account all the considerations listed in section 25 of the Act. (3) The existence of an agreement is a very relevant circumstance under section 25 and in the case of an arm's length agreement, based on legal advice between parties of equal bargaining power, is a most important piece of conduct to be considered under section 25. (4) Providing that there is equality above, the mere fact that the wife would have done better by going to the court, would not generally be a ground, for giving her more as, in addition to its duty under section 25, the court had a duty also to uphold agreements which do not offend public policy. (5) If the court, on the evidence, takes the view that having regard to the disparity of bargaining power, it would be unjust not to exercise its powers under section 23 (having regard to the considerations under section 25), it should exercise such powers even if no fraud, misrepresentation or duress is established which, at common law, would entitle a wife to avoid the deed.

    87 Ormrod LJ continued at p 1418C:

    I agree with these propositions, subject to two reservations. First, as to proposition (4), I am not sure that it is helpful to speak of the court having "a duty" to uphold agreements, although I understand the sense in which the word was used. Secondly, the reference to "disparity of bargaining power" in proposition (5) is incomplete. It is derived from a phrase taken from Brockwell v Brockwell, and for which I must accept ultimate responsibility. I used it as a shorthand way of describing a situation with which all experienced practitioners are familiar, where one spouse takes an unfair advantage of the other in the throes of marital breakdown, a time when emotional pressures are high, and judgment apt to be clouded. It is unfortunate, because Eastham J. has based his decision solely on this notion of disparity of bargaining power as such, and not on the use, if any, made of it by the husband. The wife, herself, in her affidavit in support of her application, gave as her reasons for disregarding the advice of her counsel and solicitors, and entering into the covenant not to claim a lump sum, the fact that she felt overpowered by her husband's enormous wealth and position, coupled with her fears of losing the children. There can be no doubt that in this case, as in so many, there is a disparity of bargaining power. The crucial question, however, for present purposes, is not whether the husband had a superior bargaining power, but whether he exploited it in a way which was unfair to the wife, so as to induce her to act to her disadvantage.

    88 I need not cite from Oliver LJ's judgment. His approach agreed exactly with Ormrod LJ's.

    89 In Brockwell Ormrod LJ had said this (see Dean v Dean at p 168C):

    But it must be a matter entirely for the judge to look at all the facts and the financial situation of each party and taking into account the fact that they made this agreement which to my mind is a very important piece of conduct under section 25 of the Matrimonial Causes Act 1973 because what the court is required to arrive at eventually is such an order as will be just and practicable having regard, among other things, to the conduct of the parties, and clearly when people make an agreement like this it is a very important factor in considering what is the just outcome of the proceedings. It may or may not represent what they themselves felt to be fair at the time when they made the agreement, and that is as good a guide to justice perhaps as anything.

    90 The Lord Justice returned to the same point in Edgar when, referring to what he had said in Brockwell, he said at p 1416H:

    Ain an attempt to integrate the Hyman v Hyman principle with the new provisions relating to the exercise of the discretion in financial matters, set out in section 25, I suggested in my judgment in that case, that an agreement not to claim a lump sum should be taken into account under the heading of conduct, and added, " ... when people make an agreement like this it is a very important factor in considering what is the just outcome of the proceedings." I see no reason to resile from that statement.

    91 In Camm v Camm (1983) 4 FLR 577 at p 579C the same judge said:

    It has been stressed all through those same cases that the court must attach considerable importance, the amount of importance varying from case to case, to the fact that there was an agreement, because the court, naturally, will not lightly permit parties who have made a contractual agreement between themselves, even if it is not legally enforceable, to depart from that contractual agreement unless some good reason is shown. I suggested some time ago in the case of Brockwell v Brockwell, that the right way to approach these cases now was to regard the fact of entering into a contractual arrangement as part of the conduct which was to be taken into account in arriving at a just result under the latter part of s. 25. That seems a convenient way of approaching the problem in any event. But it is much more difficult in practice than in theory to decide what weight to give to the fact of this agreement having been entered into.

    92 I was also referred to Smith v McInerney [1994] 2 FLR 1077 where, at p 1078H, Thorpe J said:

    The wife appeals the conclusion, saying simply that where there is a pre-existing contract entered into, negotiated between lawyers, the judgment of the Court of Appeal in Edgar v Edgar (1981) 2 FLR 19 makes it plain that only in the most exceptional circumstances should the court impose a different solution on the parties. I find that argument attractive, and I have to try and discern how it is that the district judge sought to impose on the parties a solution so different to that which they had themselves contracted.

    93 Again referring to Edgar, Thorpe J continued at p 1080G:

    "I agree with Mr Hess that the circumstances upon which the husband relies must be judged in their totality and with a broad perspective rather than individually one by one. But so judged, this case seems to me to fall a long way below the exceptional circumstances necessary to justify imposing on the parties terms other than those which they have themselves agreed. Mr Hess relies upon the decision of the Court of Appeal in Camm v Camm (1983) 4 FLR 577, but that was a truly exceptional case and is, so far as I know, the only in the Court of Appeal post-Edgar v Edgar in which an applicant has been allowed more than he or she contracted for. Of course, with hindsight the agreement of 15 February 1990 appears much more favourable to the wife than it does to the husband, but that is to apply hindsight judgment and is not in itself any justification for invading the contractual territory. As a matter of general policy I think it is very important that what the parties themselves agree at the time of separation should be upheld by the courts unless there are overwhelmingly strong considerations for interference."

    94 I was also referred to Xydhias v Xydhias and to G v G (Financial Provision: Separation Agreement) [2000] 2 FLR 18. Xydhias throws little additional light on the problem with which I am faced. In G v G, however, Connell J, having referred to Edgar, continued at p 32D:

    In this respect the element of conduct upon which attention is focused is perhaps more aptly described as one of the circumstances of the case which the court must take into account under s 25(1). In my view it does not matter whether the court looks at the agreement as an aspect of conduct, or as part of the overall circumstances. Whichever approach be adopted, the most relevant questions are (a) How did the agreement come to be made? (b) did the parties themselves attach importance to it? (c) have the parties themselves acted upon it?

    95 Dean v Dean is, in contrast, I think, particularly helpful. Decided shortly before Edgar, the case concerned an application, like that before me, requiring a wife to show cause why minutes of an agreement arrived at between herself and her husband should not be made an order of the court.

    96 Bush J recorded (at p 170G) that the wife had had legal advice throughout, that she knew all the relevant facts so far as her husband's financial position was concerned, that the negotiations were conducted at arm's length, that since the agreement there had been no change of circumstances, unforeseen or otherwise, that duress, mistake, undue influence were not alleged and that the wife was not left destitute. Referring to the passage in Ormrod LJ's judgment in Brockwell which I have already set out, Bush J said at p 168B that, in exercising his duty of deciding whether the concluded agreement of the parties should be made an order of the court,

    I would of course have regard to the provisions of section 25 of the Act of 1973, but also the conduct of the parties in all the circumstances. The conduct of the parties in this context must include the fact of and the nature of an agreement voluntarily arrived at between the parties.

    97 At p 172C Bush J said this:

    "It may be that on one view of the matter the wife got less than she might otherwise have done. However, what is or is not a good bargain does not depend entirely on the financial aspect: other considerations may apply. For example, though it is not so in this case, a wife's intention may be to remarry: this would make her want a lump sum and she would be prepared to appear to bargain away her right to periodical payments in order to get it, knowing full well that when she did remarry her periodical payments would cease. It would be undesirable under such circumstances that a court exercising its power under section 25 of the Act of 1973 should have to cross-examine the wife as to her intentions."

    98 Earlier, as it seems to me, Bush J had identified some of the "other considerations" which in fact applied in that particular case. Starting at p 169H he listed a number of facts which, he said, it was "important" to bear in mind. Included amongst the matters which he then listed were (i) the fact that the wife was "anxious" to obtain a divorce and "anxious" to stay in Spain with the man with whom she had been committing adultery, (ii) the fact that, at least initially, the husband was not anxious for a divorce and was seeking a reconciliation, and (iii) the fact that the wife was "anxious" about the position of her lover, her concern being that, as a married man, he might in certain circumstances, as the law then was in Spain, be imprisoned - that concern, according to the judge, was not without foundation, even though the husband and his legal advisers had not at any time used the possible Spanish legal position as a weapon or as a threat.

    99 Bush J concluded as follows at p 172E:

    The court must, in performing its duty under section 25 in circumstances where there is an agreement between the parties, adopt the broad rather than the particular approach. On the one hand, the court has a duty under section 25, but at the same time the court owes a duty to uphold agreements validly arrived at and which are not on the face of them, or in fact, against public policy. In general terms also, it is wrong for the court to stir up problems with parties who have come to an agreement.

    100 In relation to that last observation one also has to bear in mind a comment made by Connell J in G v G at p 34D:

    This litigation has provoked hostility and bitterness on both sides of the court. This family will not find peace unless finality is brought to the situation.

    101 Connell J's comment calls to mind a point made by Sir Robert Megarry VC, albeit in a very different branch of the law, in In re Earl of Strafford decd [1980] Ch 28. The Vice-Chancellor was there considering a possible compromise of litigation relating to the affairs of a trust. At p 33F he said:

    "Nor is a strict mathematical and actuarial calculation of benefits the only criterion: a compromise which, on the best estimate available, confers unequal financial benefits may nevertheless be a good compromise which ought to be accepted if it is likely to resolve long-standing family disputes and promote family peace. A beneficiary who benefits least in money may benefit most in the value that he or she places on peace of mind."

    102 Thus the authorities to which I was referred.

    103 I do not propose even to attempt to summarise, let alone to restate, the principles to be derived from these authorities. That would be a work of impertinent supererogation. I think it may be helpful, however, if I try to tease out of the passages I have quoted some propositions which are perhaps particularly significant or especially apt in the circumstances of the present case:

    • In exercising its duty under section 25 the task of the court is to reach a just result, what Lord Nicholls of Birkenhead in White v White [2001] 1 AC 596 at p 599H called the "fair" outcome. Fairness, of course, involves the principle of equality, for as Lord Nicholls pointed out at p 605B there can be no place for discrimination between husband and wife and their respective roles, whatever they may be in the circumstances of the particular case.
    • The fact that the parties have made their own agreement is a "very important" factor in considering what is the just and fair outcome. The amount of importance will vary from case to case.
    • The court will not lightly permit parties who have made an agreement between themselves to depart from it. The court should be slow to invade the contractual territory, for as a matter of general policy what the parties have themselves agreed should, unless on the face of it or in fact contrary to public policy or subject to some vitiating feature of the type referred to by Ormrod LJ, be upheld by the courts.
    • A formal agreement, properly and fairly arrived at with competent legal advice, should be upheld by the court unless there are "good and substantial grounds" for concluding that an "injustice" will be done by holding the parties to it (I adopt Ormrod LJ's formulation in preference to that of Thorpe J: his references to "the most exceptional circumstances" and "overwhelmingly strong considerations" seem to me, with respect, to put the matter perhaps a little too high).
    • The mere fact that one party might have done better by going to court is not of itself generally a ground for permitting that party to resile from what was agreed.
    • The court must nonetheless have regard to all the circumstances. The circumstances are to be judged in their totality and with a broad perspective rather than individually one by one.
    • In particular the court must have regard to the circumstances surrounding the making of the agreement, the extent to which the parties themselves attached importance to it and the extent to which the parties themselves have acted upon it.
    • The relevant circumstances are not limited to the purely financial aspects of the agreement: social, personal and, I would add, religious and cultural considerations, all have to be taken into account
    • The court should bear in mind the undesirability of stirring up problems with parties who have come to an agreement.
    • On the contrary the court should if possible, and consistent with its duty under section 25, seek to bring about family peace and finality.

    The parties's contentions

    104 The husband's case is really very simple. Mr Pointer says that the agreement between the parties was a package including two elements which were vital to the wife and her father: that she should receive a get and that she should not be divorced by the husband on the ground of her adultery. He says that the husband has wholly fulfilled his side of the bargain and that it would be grotesquely unfair if the wife were able now to walk away with the two things she desired whilst wholly avoiding her obligations under the agreement. He says that down to the point at which she repudiated her bargain in early July there had been no change of circumstances since the agreement was made or since its presentation to the court for approval in June, let alone any such change of circumstances as could conceivably justify such an extraordinary volte face at a time when the ink was barely dry. He submits that the problems presented by the District Judge's Note could very easily have been satisfactorily addressed and, moreover, satisfactorily overcome long before the expiry of the undertaking on 30 September. All that had to be done was for the wife to cooperate with the husband in amending the minutes of order, filing a fuller Form M1 and giving the court a fuller picture of the situation, in particular explaining to the court the negotiations, the basis of the agreement and the arrangements which had been made to fund the £500,000. He suggests that the District Judge=s concerns were simply used by the wife as a pretext for escaping from the agreement at a time when she had already obtained everything she required. Justifiably, as it seems to me (see paragraph [74] above), he is scathing about the wife=s attempt to justify her stance by reference to a professed inability to perform her part of the bargain at the time when she repudiated it. Finally, he says, the funds to enable the wife to honour her agreement were available to her at all times down to the expiry of the undertaking on 30 September so that if (which is not admitted) they are no longer available for that purpose it would be wholly unjust to allow her to put that forward as a reason why the agreement should now not be enforced. In sum, he says, the court should not countenance the capricious antics of the wife in seeking to resile from the agreement when she has got what she wanted. The agreed order, he submits, should be made forthwith.

    105 I have to say that the husband's case as presented by Mr Pointer is very powerful, indeed compelling. There are on the face of it no good grounds for allowing the wife to resile from an agreement into which she willingly entered and to which she committed herself only after she had had the benefit of the most expert legal advice. Far from the wife being able to show that she will suffer an injustice if held to her agreement it is on the face of it her husband who will suffer serious injustice if she is not, for he has faithfully performed his part of the bargain and in circumstances where there can be no restitutio in integrum.

    106 What then are the arguments put forward by the wife to justify so unattractive a stance? I have already set out the relevant passages from her evidence. As articulated by Mr Posnansky she relies in argument upon a number of matters. I deal first with those which are said to have arisen since the agreement was made.

    107 The wife accuses the husband of delay. The complaint, in my judgment, is quite groundless. True it is that matters did not proceed as quickly as had initially been stipulated (see paragraph [4] above), but although both the wife's and her brother's solicitors complained (paragraphs [7] and [8]) they decided not to break off negotiations and the matter proceeded as agreed by all parties (paragraphs [13]-[15]). As soon as they became aware of the District Judge's concerns the husband's solicitors responded promptly (paragraphs [28]-[32]).

    108 The wife asserts that the agreement was based on there being an amicable resolution, with discretion and without animosity. She claims that, contrary to that, the husband, both personally and through his solicitors, has behaved indiscreetly, unpleasantly and aggressively. So, it is said, the quick, discreet and amicable basis on which a payment "might (sic) have been made" entirely fell away in circumstances for which the husband is wholly responsible. This complaint, in my judgment, is also wholly groundless. In the first place, as Mr Pointer correctly observes, it was not in fact a term, let alone a condition precedent, of the agreement that the agreed terms would be implemented without acrimony. Moreover, the wife's complaints about the husband's conduct and that of his solicitors - first ventilated only after she had decided to resile from the agreement - are in any event without any real foundation in fact. If there was the gossip of which the wife complains there is nothing to show that the husband was responsible. After all there had been unwelcome media publicity at a very early stage (see paragraph [3] above). Mild sniping in the solicitors' correspondence is neither here nor there. Furthermore, many of the matters relied on occurred, to the knowledge of the wife and her advisers, whilst the agreement was still being negotiated, and before it had been finalised, and others after the wife had repudiated it: I fail to see how such matters can possibly be relevant to an allegation of breach by the husband. Mr Pointer comments, I think with some justification, that all this merely demonstrates how threadbare is the wife's case in supposed justification for her apparent change of heart.

    109 Finally, the wife asserts that it would be unjust to hold her to the agreement when her family (as she would have it, justifiably, properly and for good reason) are no longer prepared to fund it and in circumstances where, she asserts, she herself lacks the means to do so. I have already considered this proposition (see paragraphs [74] and [104] above). It is, as it seems to me, both misconceived and hypocritical. At the time in July when she repudiated the agreement the wife had, in the form of the monies lodged with his solicitors by her brother, access to sufficient funds to enable her to honour her agreement. Those funds remained available to her at all times down to the expiry of the undertaking on 30 September. In these circumstances I simply do not understand how the wife seeks to justify her stance by reference to a professed inability to perform her part of the bargain. The money was there. All she had to do was to adhere to her agreement and cooperate with her husband in smoothing over the far from insurmountable difficulties identified by the District Judge. Moreover, as Mr Pointer submits, even if it be the case that those funds are no longer available to the wife, since they were available at the time when she sought to resile from her agreement it would be wholly unjust to allow her now to put that difficulty forward as any reason why the agreement should not be enforced against her. It is her fault, not her husband's, that, as matters have transpired, the undertaking will no longer be in place at the date when she has to perform her part of the bargain.

    110 That leaves the wife's complaints about the agreement itself. In the first place she attempts to construct a case that she and her father were the victims of "blackmail" and extortion. It is suggested that there was an inequality of bargaining power of which the husband took advantage. There is nothing in the contemporaneous correspondence to support this and, as Mr Pointer observes, neither the wife's solicitors nor her brother's appear at the time to have had any qualms at all about the agreement. Nor is there any real basis for suggesting that there was in truth any inequality of bargaining power. The wife's family had something the husband wanted: money. The husband had something the wife and her father needed: the ability to obtain for her both a get and a civil divorce granted on grounds other than her own adultery.

    111 Who is to say which side had the greater bargaining power? A number of the factors in play are simply unquantifiable on any objective basis. How is a secular judge to evaluate the combination of the get and a decree based on the husband's conduct rather than the wife's adultery for a family apparently exercised by the possible religious and social ramifications? How am I to put a price on the cost to the husband of a divorce obtained by his wife against him on the ground of his behaviour rather than a divorce obtained by him on the ground of her adultery? By what standard am I to assess whatever religious or moral duty the husband may have been under to give his wife a get - particularly if he had reason to think she was guilty of adultery?

    112 There are no means by which a secular judge, who may himself be an adherent of the same or a different faith or of no faith at all, can evaluate, let alone attribute some pecuniary value to, something as personal and of such religious significance as a get. Nor would it be right to attempt to do so. As I said in a judgment which I delivered a few moments ago concerning a talaq (Sulaiman v Juffali at para [47]):

    Although historically this country is part of the Christian west, and although it has an established church which is Christian, I sit as a secular judge serving a multi-cultural community of many faiths in which all of us can now take pride, sworn to do justice "to all manner of people". Religion - whatever the particular believer's faith - is no doubt something to be encouraged but it is not the business of government or of the secular courts. So the starting point of the law is an essentially agnostic view of religious beliefs and a tolerant indulgence to religious and cultural diversity. A secular judge must be wary of straying across the well-recognised divide between church and state. It is not for a judge to weigh one religion against another. All are entitled to equal respect, whether in times of peace or, as at present, amidst the clash of arms.

    113 Accordingly the civil courts should be slow to interfere in the life of any religious minority or to become involved in adjudicating on purely religious issues. So, in my judgment, the civil courts should be slow to interfere in the private religious issues of the Jewish community. As Wall J said in N v N (Jurisdiction) (itself a case concerning a get) at p 762D:

    My judgment in this case demonstrates the limited extent to which the civil courts can or should interfere in the life of any religious minority.

    And as I pointed out in Sulaiman at paras [39] and [46] the civil courts do not recognise a get given and received in this country as validly dissolving a marriage.

    114 This is not, however, to deny that the civil courts have traditionally and properly accepted the profound significance within the Jewish community of a wife's ability to receive a get if her husband is willing to give it. Joseph v Joseph [1953] 1 WLR 1182 demonstrates that the giving and receiving of a get, though it will not be recognised by the civil courts as dissolving a marriage, may nonetheless be recognised by those courts as having consequences even in the civil law. In Berkovits v Grinberg Wall J acknowledged at p 159F what he called the "considerable force" of the policy arguments in favour of recognising a transnational get as valid in dissolving the marriage. And both Brett v Brett [1969] 1 WLR 487 and Wall J's own judgment in N v N (Jurisdiction) stand as eloquent testimony to the willingness of the civil courts to take whatever steps may be available to encourage a recalcitrant husband to give a get.

    115 Accordingly I do not accept that there was in this case any inequality of bargaining power. But even if there was, who is to say that either side used its bargaining power inappropriately? After all, the husband, who on this part of the wife's case was interested solely in extorting money from her family, was faced with two difficult opponents: a wife who professed to have no tangible assets of any real value and a brother-in-law with a very deep pocket who was plainly threatening to bankroll his sister's defence of any claim for ancillary relief if the husband did not come to heel (see paragraph [8] above).

    116 In my judgment the wife has wholly failed to establish either that there was any inequality of bargaining power or, even assuming there was, that it was the husband who sought to exploit it. Mr Pointer suggests that one way of testing the assertion is to ask whether the agreement is unconscionable or obviously unfair. I agree with him that it is neither.

    117 Finally, the wife is left with the argument that on a proper application of the factors in section 25 the terms of the agreement do not properly reflect the criteria in the section and accordingly do not represent a proper - a fair or just - outcome. Mr Posnansky goes so far as to assert that on a proper application of the section there should be no order in favour of the husband. Alternatively, he suggests that £45,000 to repay the husband's expenditure (see paragraph [67] above) might just be fair. A sum of £500,000 or anything approaching it, he says flatly, is plainly wrong. There is simply no basis he says for any substantial lump sum payment to the husband.

    118 He points out that this was a short and childless marriage, that on any basis the husband has what he calls substantial assets, and that the wife, so he says, has no assets and is wholly dependent on support from her family. He criticises as "bizarre" the basis of the husband's claim as I have summarised it in paragraph [66] above. He asserts that since Jewish law forbids any payment for a get the husband cannot rely upon his giving the wife the get and the civil divorce she wanted as an argument in justification of a lump sum of £500,000.

    119 Mr Pointer says that I have to look at what the parties themselves saw as being a package and, taking a broad view, to assess the agreement as a whole and in the round. He says that I should not be astute to dissect its individual components with a view to attempting to evaluate them individually or in isolation. I agree.

    120 He asks rhetorically how a judge is to say that the value of £500,000 put on a combination of the two items which were of concern to the wife and her family and the husband's independent ancillary relief claim is wrong for a family, as he puts it, of great fortune - perhaps of hundreds of millions of pounds - and apparently considerably exercised by the possible social and religious ramifications. For reasons which will by now be apparent there is, in my judgment, very considerable force in that submission. Appropriately, as it seems to me, Mr Pointer reminds me of a comment Thorpe J made in F v F (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45 at p 50B:

    [I]t is important as a matter of principle that the court should endeavour to determine reasonableness according to the standards of the ultra-rich and to avoid the risk of confining them by the application of scales that would seem generous to ordinary people.

    Now that was said in the context of a dispute as to maintenance pending suit but it seems to me that, as Mr Pointer submitted, Thorpe J's observation was but a manifestation of a wider principle to which I should have regard.

    121 Mr Pointer also suggests that Mr Posnansky's approach fails to distinguish between, indeed tends to confuse, what I accept are two quite distinct things: (i) the parties' motivations and objectives in negotiating the agreement, which may of course have been - indeed probably were - wholly different, which of their very nature may be difficult to identify and to evaluate, and which Mr Pointer submits are thus of only tangential significance; and (ii) the actual terms agreed between the parties, which by definition reflect common ground between the parties, which at least have the advantage of being readily identifiable, and which he says should thus be the primary focus of my consideration. Specifically he warns me against assuming too readily either that the wife and the husband agreed on anything beyond the actual terms of their agreement or that the husband would necessarily have shared the wife's (or her family's) perceptions as to the relative values of the different parts of the package. I agree. At the end of the day, and in the final analysis, what I have to evaluate are the terms agreed, not the perhaps differing or even contradictory reasons why the parties decided to reach agreement on those terms.

    122 At the end of the day, applying the principles to be found in the cases to which I have been referred and, in particular, having regard to those factors which I have mentioned in paragraph [103] above, I have no doubt that this is an agreement to which the wife should be held. Despite everything said by Mr Posnansky, he has failed to persuade me that there are any good grounds, indeed any grounds at all, for allowing the wife to resile from an agreement into which, as I have said, she willingly entered and to which she committed herself only after she had had the benefit of the most expert legal advice. In my judgment this is a case in which, far from the wife being able to show that she will suffer an injustice if held to her agreement, it is her husband who will suffer serious injustice if she is not. He has faithfully performed his part of the bargain and in circumstances where there can be no restitutio in integrum.

    123 Accordingly, subject to any specific points which Mr Posnansky may have on the precise form of the draft minutes of order, I propose to grant the husband the summary order he seeks as against the wife. The remaining issues relating to the wife's brother, his solicitors and the undertaking will have to be dealt with on some future occasion.

Judgment, published: 09/11/2001

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Published: 09/11/2001

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