Wife denied second bite of the cherry

T v T [2013] EWHC B3 (Fam)

This was an application by the husband for the court to make an order in the terms of a Separation Agreement which the parties had entered into over 20 years ago. The court found for the husband and dismissed the wife’s application for a financial remedy.

Facts

Mr and Mrs T were married in 1985. In 1991, their marriage broke down and they separated. Both instructed highly regarded London based firms to represent them in dealing with their divorce and finances.

The parties agreed that they would divorce based on the fact of two years’ separation with consent. They had only just separated, so they agreed that Mr T would apply for a divorce once two years had passed. As regards their finances, the parties entered into a Separation Agreement. The terms of the agreement were that Mr T would transfer his interest in the parties’ two properties to Mrs T. In return, she would pay him a lump sum of £175,000. The agreement stated that both parties intended this to be in full and final settlement of their financial claims against the other. The agreement also provided that once, in two years time, decree nisi had been pronounced, the parties would ask the court to approve the Separation Agreement and make it an order of the court.

In accordance with the agreement, two years later, Mr T made an application for divorce. Decree absolute was pronounced in 1995. However, for reasons which are not clear, neither party presented the Separation Agreement to the court and asked for it to be made an order of the court. Mr T said he assumed that this was a formality which his solicitors would deal with. Nonetheless, the terms of the agreement were implemented: Mr T transferred his interest in the two properties to Mrs T and she paid him a lump sum of £175,000.

These proceedings

Over 20 years after the original agreement, Mrs T instructed solicitors to make an application to court for a financial remedy, on the basis (she said) that the Separation Agreement had never been made an order of the court. Mr T made a cross application: he said that the onus should be on Mrs T to demonstrate that the financial agreement they entered into back in 1991 should not be made an order of the court. Mr T’s application was heard by Mrs Justice Parker in the High Court.

Mrs T argued that at the time of the agreement, the husband had not disclosed all of his assets. She argued that she was put under pressure, both by Mr T and her then solicitors to sign the agreement. Mrs Justice Parker rejected those arguments. Mrs T also asserted that her current financial circumstances were relevant: whereas Mr T’s wealth had increased since the parties separated, Mrs T’s had decreased. The Judge found that this was irrelevant, not least because of the length of time which had passed since the parties had entered into the Separation Agreement.

Outcome

Mrs Justice Parker found that both parties had clearly intended to resolve their financial affairs in 1991. They had demonstrated this by acting on the agreement. Neither had attempted, until now, to question the terms of the agreement. On this basis, the Judge said, “the existence of the Separation Agreement must be regarded of magnetic importance”.

The Judge therefore found for Mr T and made the Separation Agreement an order of the court. Mrs T’s financial application was dismissed, and she was ordered to pay Mr T’s costs of the proceedings

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