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Cite as: [2015] EWHC 812 (Fam)

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Neutral Citation Number: [2015] EWHC 812 (Fam)
Case No: FD12D00906

IN THE HIGH COURT OF JUSTICE
FAMILY DIVISION

Royal Courts of Justice
Strand, London, WC2A 2LL
26/03/2015

B e f o r e :

MR NICHOLAS CUSWORTH QC
(SITTING AS A DEPUTY HIGH COURT JUDGE)
____________________

Between:
CAROLINE LOUISE HOPKINS
 Applicant
- and -
WILLIAM IAN HOPKINS
 Respondent

____________________

NICHOLAS FRANCIS QC AND RICHARD BATES (instructed by Stokes Partnership) for the Applicant
RICHARD TODD QC AND MICHAEL BRADLEY (instructed by Payne Hicks Beach) for the Respondent

Hearing dates: 9th – 13th, 16th March 2015
____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mr CUSWORTH QC :

  1. Mr and Mrs Hopkins were married on 18th April 2009. They separated in August or September 2011, and Mrs Hopkins has told me that as far as she was concerned, their marriage was effectively over some 6 months earlier than that. These proceedings began in January 2013, and have now cost the parties a combined figure of £758,654. In addition to the provision contained in an agreement which they signed in August 2011, and which she has received but for the implementation of an agreed pension sharing order, Mrs Hopkins sought by her position statement a further £2million. Her husband offers her a sum of £200,000 in addition to such provision. Thus, at trial, in purely financial terms, their costs have taken up over 42% of the issue, between the parties.

  2. The reason for this unhappy situation is that the parties' August 2011 agreement, which describes itself as 'Post-Nuptial', purports to limit and define appropriate provision in the event of marital breakdown between the parties. It was an agreement arrived at between them in principle in the spring of 2011, just over 5 months after the landmark decision of Radmacher (formerly Granatino) v Granatino [2010] UKSC 427 was handed down in the Supreme Court. It is Mrs Hopkins' case that this agreement 'is vitiated by duress; alternatively unconscionable conduct such as undue pressure (falling short of duress); alternatively other unworthy conduct, such as exploitation of a dominant position to secure unfair advantage'. The court is asked to take into account Mrs Hopkins' 'emotional state and what pressures she was under to agree'. Her Counsel also argue questions of fairness and need that will be dealt with later.

  3. Thus it will be clear that the background to the making of this agreement, and the circumstances of the whole relationship between the parties that preceded it, have of necessity been the subject of close scrutiny over the course of the 3 days of evidence and 3 hours of closing submissions which I have heard. Both parties have given evidence to me and were in court throughout. I have also had the opportunity of reading a transcript of the entirety of the wife's evidence, which was provided to me by Counsel after the conclusion of their submissions. Neither party called any other witness to support their respective cases, which has meant that I have no reason to doubt or challenge any of the statements or assertions made by others and recorded in the case papers before me. The detailed background is helpfully set out in an agreed chronology which runs to some 20 pages. What I set out here is only what seems to me the most pertinent to the issues which I have had to decide.

  4. Relevant Background. Mr Hopkins (whom I shall refer to as 'the husband' for the rest of this judgment), is 66, and Mrs Hopkins ('the wife') is 62. They have known each other for a long time. They first met when the husband was around 28 and the wife 25, and were both then otherwise married and with young children from those relationships. They commenced what the wife's former solicitor has described as a 'clandestine' affair, at a time when the husband was still living with his first wife and the wife was living with another man, having separated from her first husband. During that relationship, the parties never cohabited, but did have a son, William, born on 7th September 1981. Both parties already had 2 older children each by that time in their respective marriages.

  5. During 1981, while the wife was pregnant, the husband acquired a run-down house (91 Brook Street) in his sole name, for her and her children to live in. He also provided for some work to be done on the property. The wife also made a contribution to this. The relationship between them ended in 1982 or 1983, and the husband remained living with his then wife Anne. In 1986, the wife married for a second time, to a man named Peter Griffiths, who had moved into 91 Brook Street to live with her. That marriage was to last for 13 years, and produce one further child.

  6. In January 1989, in circumstances which have been the subject of some dispute, title to 91 Brook Street passed from the husband to the wife and Mr Griffiths. At the time, on 4th January 1989, the wife signed a document which read, materially, as follows: 'I... acknowledge that (the husband) has agreed by contract to sell to me and (Mr Griffiths) the property 91 Brook Street at the price of fifteen thousand pounds and I estimate its current market value to be in the region of sixty-five thousand pounds. I acknowledge on my own behalf and on behalf of my son William, that this gift is made in full and final settlement of any claim that I or my son William may have against (the husband).' Whilst the husband maintains that this document properly reflects the agreement between them at the time, the wife now says that in fact a further cash payment was made.

  7. Ten years later, in 1999, the wife separated from Mr Griffiths, and in 2000 she made contact with the husband again – asking for assistance to help fund Will's tertiary education costs. At the end of that year, the parties went on holiday together and the husband separated from Anne, to whom he had by then been married to for some 29 years. During 2001, the parties began to cohabit together in a property, owned by one of the husband's business concerns, called Lynwood. In that year the husband's marriage to Anne is dissolved. In 2002, the wife's marriage to Peter Griffiths is also dissolved. In November 2003, the parties moved into the husband's former matrimonial home at Penselwood, near Wincanton, upon Anne vacating the property.

  8. 2½ years after this, in March 2006, it is accepted that the wife visited a matrimonial solicitor, Mr Stokes, and took some advice – the precise purpose and extent of which has been in dispute before me – but from which meeting a hand-written attendance note has been produced. She says that she sought advice about her position only in the event of the husband's death at that point. The husband contends that the advice sought also covered her rights in the event of separation. The parties at that point were of course merely cohabiting.

  9. In November 2008, the parties separated for a period of between 1 and 2 weeks when the wife left, and the husband wrote a letter to her in which he said: 'I would count my blessings if you were to give me one last chance'. She evidently determined to do that, and the parties were reconciled, and subsequently married on 18th April 2009. In that same year the wife gifted her share in a property to her daughter by her first marriage, Samantha. She also provided the sum of £285,000 to the parties' son William to enable to acquire a property in North London. This is money that she had realised from the renovation and sale of another property of hers. There has been an issue between the parties as to whether at the time this was intended to be a gift (as the wife says), or a loan.

  10. Just over a year after their marriage, in July 2010, the wife returned to see Mr Stokes, and this time received a detailed letter of advice from him following their meeting, some 21 pages long, which covered the broad range of her entitlement, and was sent to her care of a friend's address. Under the heading 'Your Instructions', Mr Stokes set out in that letter the following account of the situation as it then stood: 'Notwithstanding your consultation with me in March 2006 and the advice I gave you, you separated from Mr Hopkins in November 2008, though your separation was brief, as he encouraged you to reconcile and be married in April 2009. By June 2010 your marriage was in difficulty, so that you and Mr Hopkins have discussed separation and its dissolution. Your discussion with him has prompted you to seek my further advice. You have asked me to advise you with regard to matrimonial causes and, prospectively, to represent you in them.'

  11. Further in that letter Mr Stokes described as the wife's 'only significant asset' 'the loan which you have made to William of £300,000…William is expected to make arrangements soon…to repay about 2/3 of the loan with the balance being forgiven as part of a family arrangement, which you have made with Mr Hopkins' concurrence.' The husband does not accept that he was made aware of this arrangement, but does accept that he knew of the loan.

  12. In the event, proceedings did not immediately follow. Mr Stokes sent a bill for work done in the following October, to which the wife responded by email on 24th November 2010. That email included the following: 'Bill (the husband) never looks at my computer…I told Bill I'd spoken with you, which may well have been helpful! Possibly not if he'd known what you actually sent me. Remarkably Bill does tell me all the business details, which may have seemed unlikely to you the state I was in when I saw you. Things have changed since I came to see you. A combination of various changes…but we are both much happier.'

  13. In early February 2011, the parties attended counselling sessions with 2 different counsellors, but these sessions proved unsuccessful. Subsequently, they both attended matrimonial solicitors, but the wife determined not to go back to Mr Stokes, but rather to see Mr Justin Martin, then of Poole & Co. He first saw her on 26th February. She does not appear to have told him about her previous visits to Mr Stokes. She did tell him about the loan to William, which she described as being in the sum of £285,000.

  14. By that time, the husband had visited Baroness Shackleton at Payne Hicks Beach (PHB), on 23rd February 2011. On that day he gave instructions for the issuing of divorce proceedings in London, which were not immediately served. Before this, the husband had found a copy of the wife's 2010 letter of advice from Mr Stokes in the family home whilst looking for the parties' marriage certificate. His evidence is that he told the wife soon after that he had seen this document. On 28th February, the parties had discussions during which the husband suggested to the wife that they should consider entering into a Post-Nuptial Agreement (PNA).

  15. The events which then followed during the month of March 2011 have proved to be pivotal in the chain of events which led to the eventual signing by the parties of a PNA in the following August. Put succinctly:

  16. On 6th April 2011, PHB wrote setting out the proposed terms upon which they were instructed that the parties had agreed. The first paragraph read: 'Our clients wish to attempt a reconciliation and will do so with the assistance of counselling.' The terms of the agreement were then set out, with the wife receiving the 2 properties, the car, and a lump sum which had now increased to £350,000, payable only in the event of subsequent divorce.

  17. On the very next day, when travelling together to the next arranged session of joint counselling, the wife told the husband that she anyway intended to leave him, whereupon the arranged session did not take place. However, on the same day the wife sent an email to Mr Martin wondering if he had yet received the letter containing proposed terms from PHB. She wrote 'I am quite anxious to see it as you can imagine.' When Mr Martin forwarded the letter of 6th April to her on the 8th, she replied after 1 hour and 11 minutes saying simply 'I have read the attached and agree to it.'

  18. One week later, on 15th April, the wife felt the need to contact Mr Martin, prompting him to confirm her agreement in principle to the husband's proposal. She then sent an email recording her disappointment that the response had required her further contact. This is the first of a number emails which the wife asserts were in fact dictated to her by the husband, which allegation the husband denies. On 19th April a further chasing email was sent, asking to see correspondence before it was sent, any sent already, and those from PHB. Mr Martin confirmed by letter on the same day that he had had no contact since 6th April from PHB.

  19. Both parties agree that on about 5th May they agreed to vary their agreement so that the lump sum provision on divorce was replaced by a pension share. On 9th May, PHB acknowledged Mr Martin's letter of 15th April and indicated that they were in the process of drafting the PNA. This was eventually sent through on 6th June and forward to the wife on 7th. The parties then set about preparing the necessary financial disclosure with their respective solicitors. On 10th June the wife emailed Mr Martin to say: 'As I have said before I am happy with the agreement, and really wish it to move forward to a conclusion as soon as possible.' On 13th Mr Martin replied: 'Until we have Bill's disclosures we cannot complete the agreement and move the matter on.'

  20. Meanwhile, the parties were continuing to discuss between them the issues which had soured their relationship. The husband says that this was with a view to seeing whether reconciliation remained a possibility – the wife says that it was merely, as far as she was concerned, with a view to enabling them to remain friends. During June 2011, the wife wrote a letter to the husband headed: 'How Things Could Change!!', and the matters set out included:

  21. The husband's initial reply, sent on 17th June, provided his not-uncritical reaction. He stated:

  22. Later on the same day he sent a second letter, designed to supersede the first, headed 'I Will Change – Believe Me Please', in which he simply accepted all of the blame for the couple's troubles, and said: 'I will not bully you again'. This letter concluded: 'Caroline, I still love you and if at some point you could ever give me another chance I would prove to you I can change and be a better person in our relationship and show you the love and attention such a wonderful lady deserves'

  23. On 20th June Mr Martin wrote to the wife asking, amongst other things, for the date of the £285,000 loan to William. At a meeting later that day he recorded that 'she reiterated…the gift of the property to William. The arrangement was that William would share his gift with (her daughters) Samantha and Henrietta.'

  24. On 27th June, PHB sent through an updated version of the PNA with their client's financial disclosure attached. On 1st July, Mr Martin told the wife by email that he would have to amend the deed to make it clear that he had not approved the terms of the agreement, and that he had advised her about this. The wife's slightly intemperate response starts with an apology for being short with him that morning, and included: 'You ask whether I am content for you to make amendments, well having looked at the draft many times and thought it through, I am happy for the draft to stay as it is'; and 'I am sure your advice would be that I am entitled to more, but I am entirely happy with this settlement, as I have said to you previously'. It is her case that the husband dictated this, which he denies.

  25. Importantly, Mr Martin responded on 2nd July making clear that he could not leave un-amended a draft which indicated that he was satisfied with its terms on the wife's behalf, when he was not. He added: 'All that is required is that I advise you what you could expect a court to award you on a divorce and to confirm that I have given you correct advice. If you then sign the agreement then it will be watertight.'

  26. On 5th July, Mr Martin sent to the wife an opinion from specialist matrimonial Counsel, Alexander Thorpe. In that document he stated at paragraph [31]: 'I do stress that the lengths to which those instructing me have gone in their attempt to inform W only strengthen the agreement in the eyes of the court, despite its unfairness. In short, this advice undermines any future attempt to challenge the agreement because of the clarity of the views expressed herein.'

  27. On the following day, 6th July, the wife responded to Mr Martin, in another email she alleges the husband dictated for her, which allegation he again rejects. There she said: 'I understand you are looking after your client's best interest, but I feel you seem to be ignoring my instructions…I am happy with (the final settlement), albeit against your advice and I would like to sign the PNA and to give you the indemnity you require…we are still living together, having counselling and trying to resolve our differences… Counsel's suggestions of huge rewards are of no interest to me, and I know I shall never challenge the PNA...'

  28. On the evening of 6th July, the wife emailed again asking whether Mr Martin's suggested amendments did not invalidate the whole agreement as excluding the fact that she had received legal advice. Again she says, and the husband denies, that he is the message's true author. Mr Martin replied early the next morning just as the parties were leaving on separate holidays explaining the purpose of his changes. He confirmed: 'The fact that you have been advised that the agreement is not fair to you does not invalidate the agreement. You are perfectly entitled to agree what you want. What makes it watertight is that you have been advised, not that you have followed that advice.'

  29. These 6th and 7th July emails do appear to have been forwarded by the wife to the husband, and he accepts receiving the former. The latter, sent while he was in transit at an airport, he says that he does not remember seeing. In any event the parties both now spent time apart at separate holiday destinations, speaking briefly once or twice. The wife did not return until 1st August, when, according to Mr Martin's attendance note she was 'pretty insistent about calling in to execute the document.' He continued: 'I prepared the deed of disclaimer which she read carefully…Mrs Hopkins signed both the Post Nuptial Agreement and the Deed of Disclaimer and again was entirely comfortable with what she had done.' Mr Martin confirmed that his bill included Alexander Thorpe's fees.

  30. Three days later, on 4th August, the wife telephoned, and as Mr Martin put it: 'I explained that this was the point of no return and she agreed that I should date the document thus making it binding.' He concluded: 'I should say that Mrs Hopkins demeanour was entirely cool, calm and collected and I have absolutely no doubt that for whatever reason she wanted to do what she was doing in the full understanding of the consequences thereof.'

  31. I have read and heard a significant amount of evidence about what happened between the parties in the following months up to late November 2012, nearly 16 months later, which appears to be the time at which the wife finally decided that she would seek to challenge the PNA. The parties physically separated in mid-August 2011. In September 2011, the husband says that there was a final episode of sexual relations between them, which the wife denies. In February 2012 the wife filed a further petition for divorce. On 26th June 2012 the wife signed, but did not send, a copy of a consent order prepared to reflect the PNA.

  32. By October 2012, the wife was expressing herself to be upset that she had received all of what she felt were her possessions from the former matrimonial home, especially plants. On 12th she wrote to the husband that 'you have still not sorted out my things … so I have not signed.' On 24th October, Mr Martin was instructed by her to complete the minutes of agreement and consent order. However, by the end of November it appears that she had determined to seek to challenge the agreement, and in December 2012, she dispensed with Mr Martin's services and returned to Mr Stokes.

  33. The wife's Form A was filed on 17th January 2013, with the husband's application for notice to show cause why an order should not be made in terms of the agreement following, inevitably, 6 days later. That is the factual background to the dispute upon which these parties have now spent more than three quarters of a million pounds in bringing to trial.

  34. The Law. When the wife first went to see Mr Martin, and the husband to Baroness Shackleton, in February 2011, the judgment of the Supreme Court in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, delivered on 20th October 2010, was just 4 months old, and therefore very much to the forefront of the minds of all specialist matrimonial lawyers. It remains the principal touchstone for all cases which involve the impact of a nuptial agreement upon the financial remedy process. In delivering the judgment of the Court, Lord Phillips dealt thus with the issues of weight that are relevant in this case:

    35. "Factors detracting from the weight to be accorded to the agreement
    68. If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, both the husband and wife must enter into it of their own free will, without undue influence or pressure, and informed of its implications...
    69. ...Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party's assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.
    70. It is, of course, important that each party should intend that the agreement should be effective. In the past it may not have been right to infer from the fact of the conclusion of the agreement that the parties intended it to take effect, for they may have been advised that such agreements were void under English law and likely to carry little or no weight. That will no longer be the case... In future it will be natural to infer that parties who enter into an ante-nuptial agreement to which English law is likely to be applied intend that effect should be given to it.
    71. In relation to the circumstances attending the making of the nuptial agreement, this comment of Ormrod LJ in Edgar v Edgar at p 1417, although made about a separation agreement, is pertinent:
    "It is not necessary in this connection to think in formal legal terms, such as misrepresentation or estoppel; all the circumstances as they affect each of two human beings must be considered in the complex relationship of marriage."
    The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.
    72. The court may take into account a party's emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples...
    73. If the terms of the agreement are unfair from the start, this will reduce its weight, although this question will be subsumed in practice in the question of whether the agreement operates unfairly having regard to the circumstances prevailing at the time of the breakdown of the marriage.
    ...Fairness
    75. White v White and Miller v Miller establish that the overriding criterion to be applied in ancillary relief proceedings is that of fairness and identify the three strands of need, compensation and sharing that are relevant to the question of what is fair. If an ante-nuptial agreement deals with those matters in a way that the court might adopt absent such an agreement, there is no problem about giving effect to the agreement. The problem arises where the agreement makes provisions that conflict with what the court would otherwise consider to be the requirements of fairness. The fact of the agreement is capable of altering what is fair. It is an important factor to be weighed in the balance. We would advance the following proposition, to be applied in the case of both ante- and post-nuptial agreements, in preference to that suggested by the Board in MacLeod:
    "The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
    76. That leaves outstanding the difficult question of the circumstances in which it will not be fair to hold the parties to their agreement. This will necessarily depend upon the facts of the particular case, and it would not be desirable to lay down rules that would fetter the flexibility that the court requires to reach a fair result. There is, however, some guidance that we believe that it is safe to give directed to the situation where there are no tainting circumstances attending the conclusion of the agreement.
    ...Autonomy
    78. The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy. The court should accord respect to the decision of a married couple as to the manner in which their financial affairs should be regulated. It would be paternalistic and patronising to override their agreement simply on the basis that the court knows best. This is particularly true where the parties' agreement addresses existing circumstances and not merely the contingencies of an uncertain future."
  35. Although I have been provided with a fat bundle of authorities by the husband's legal team, and a full 15 pages of legal argument in their estimable skeleton, there is not I think any great distance between the parties as to what the applicable law is in this case. All will therefore turn upon the facts which I find to be those to which I have to apply that law. Whilst I have been referred to a number of cases, there has been no argument about their impact. These have included RBS v Etridge (No 2) [2002] AC 773; NA v MA [2006] EWHC 2900 (Fam); N v F [2011] EWHC 586; V v V [2011] EWHC 3230; BN v MA [2013] EWHC 4250 (Fam); and Luckwell v Limata [2014] EWHC 502 (Fam).

  36. Of the above, NA v MA [2006] EWHC 2900 (Fam) is the single one to which Mr Francis QC for the wife made reference which was not already included in the husband's bundle. It is a decision of Baron J, from 2006, some 2 years before her later decision of NG v KR [2008] EWHC 1532 (Fam) came to be overturned by the higher Courts and provide the Supreme Court authority cited above. In that case, the judge set out the well-known tests applied since the famous Court of Appeal decision in Edgar:

    37. 12) …current Authority makes it clear that the agreements are not enforceable per se although they can be persuasive (or definitive) depending upon the precise circumstances that lead to their completion.
    13) In Edgar v Edgar [1980] 1 WLR 1410, as Ormrod LJ, with whose judgment Oliver LJ agreed, said, at 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."
    Oliver LJ similarly enunciated the general principle at 142E-F:
    "… in a consideration of what is just to be done in the exercise of the court's powers under the Act of 1973 in the light of the conduct of the parties, the court must, I think, start from the position that a solemn and freely negotiated bargain by which a party defines her own requirements ought to be adhered to unless some clear and compelling reason, such as, for instance, a drastic change of circumstances, is shown to the contrary."
    14) I accept that these are succinct and proper formulations of the test to be applied."
  37. Baron J went on, in what was another case where a wife was alleging that she had signed a PNA in circumstances of improper pressure, to assess the impact of the decision in RBS v Etridge (No.2) which Mr Todd QC for the husband in this case has cited. She said:

    38. "16) It is the Wife's case that she should not be held to this deal because she was improperly pressured into signing it as a result of her Husband's conduct over a period of about 3 months. The formulation per Ormrod LJ is "undue pressure". It is the Husband's case that the test should be akin to that of undue influence in civil cases.
    17) In RBS v Etridge (No 2) [2001] 2 FLR 1364 Lord Nicholls stated:
    [6] The issues raised by these appeals make it necessary to go back to first principles. Undue influence is one of the grounds of relief developed by the courts of equity as a court of conscience. The objective is to ensure that the influence of one person over another is not abused. In everyday life people constantly seek to influence the decisions of others. They seek to persuade those with whom they are dealing to enter into transactions, whether great or small. The law has set limits to the means properly employable for this purpose. To this end the common law developed a principle of duress. Originally this was narrow in its scope, restricted to the more blatant forms of physical coercion, such as personal violence.
    [7] Here, as elsewhere in the law, equity supplemented the common law. Equity extended the reach of the law to other unacceptable forms of persuasion. The law will investigate the manner in which the intention to enter into the transaction was secured: 'how the intention was produced', in the oft repeated words of Lord Eldon LC, from as long ago as 1807 (Huguenin v Baseley (1807) 14 Ves 273, 300). If the intention was produced by an unacceptable means, the law will not permit the transaction to stand. The means used is regarded as an exercise of improper or 'undue' influence, and hence unacceptable, whenever the consent thus procured ought not fairly to be treated as the expression of a person's free will. It is impossible to be more precise or definitive. The circumstances in which one person acquires influence over another, and the manner in which influence may be exercised, vary too widely to permit of any more specific criterion. [emphasis added]
    18) This is a fair formulation to enable the assessment of any given set of circumstances. However, in a case involving a Husband and Wife where it is clear that interdependence and mutual influence are the basis of the relationship, I consider that the Court has to take special care when assessing the manner in which each party's conduct affected the other. For example, if a wife has been accustomed to placing reliance upon her husband's decisions she might be much more easily influenced than an individual in a commercial transaction.
    19) In Etridge Lord Nicholls stated at 1368:
    "[8] Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes unfair advantage….
    [9] In cases of this latter nature the influence one person has over another provides scope for misuse without any specific overt acts of persuasion. The relationship between two individuals may be such that, without more, one of them is disposed to agree a course of action proposed by the other. Typically this occurs when one person places trust in another to look after his affairs and interests, and the latter betrays this trust by preferring his own interests. He abuses the influence he has acquired……
    [10] The law has long recognised the need to prevent abuse of influence in these 'relationship' cases despite the absence of evidence of overt acts of persuasive conduct. The types of relationship, such as parent and child, in which this principle falls to be applied cannot be listed exhaustively. Relationships are infinitely various….
    [11] Even this test is not comprehensive. The principle is not confined to cases of abuse of trust and confidence. It also includes, for instance, cases where a vulnerable person has been exploited. Indeed, there is no single touchstone for determining whether the principle is applicable. Several expressions have been used in an endeavour to encapsulate the essence: trust and confidence, reliance, dependence or vulnerability on the one hand and ascendancy, domination or control on the other. None of these descriptions is perfect. None is all embracing. Each has its proper place.
    [12] It is not essential that the transaction should be disadvantageous to the pressurised or influenced person, either in financial terms or in any other way. However, in the nature of things, questions of undue influence will not usually arise, and the exercise of undue influence is unlikely to occur, where the transaction is innocuous. The issue is likely to arise only when, in some respect, the transaction was disadvantageous either from the outset or as matters turned out.
    Burden of proof and presumptions
    [13] Whether a transaction was brought about by the exercise of undue influence is a question of fact. Here, as elsewhere, the general principle is that he who asserts a wrong has been committed must prove it. The burden of proving an allegation of undue influence rests upon the person who claims to have been wronged. This is the general rule. The evidence required to discharge the burden of proof depends on the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship, and all the circumstances of the case.
    [14] Proof that the complainant placed trust and confidence in the other party in relation to the management of the complainant's financial affairs, coupled with a transaction which calls for explanation, will normally be sufficient, failing satisfactory evidence to the contrary, to discharge the burden of proof. On proof of these two matters the stage is set for the court to infer that, in the absence of a satisfactory explanation, the transaction can only have been procured by undue influence. In other words, proof of these two facts is prima facie evidence that the defendant abused the influence he acquired in the parties' relationship. He preferred his own interests. He did not behave fairly to the other. So the evidential burden then shifts to him. It is for him to produce evidence to counter the inference which otherwise should be drawn."
    20) Clearly, this statement of law requires some modification for the special relationship between spouses that I have outlined. Nevertheless, I am clear that, to overturn the agreement, I have to be satisfied that this Wife's will was overborne by her Husband exercising undue pressure or influence over her.
    21) I am also clear that if I do not overturn the agreement per se, I still have to consider whether it is fair and should be approved so as to become a Court order."
  38. I have all of the above in mind in deciding this case. Plainly, this couple's age, maturity and experience would count in favour of this agreement being upheld. So too would the fact that the wife had received detailed legal advice, expressed by her lawyers to be watertight. How then does she set about challenging the agreement? The wife's case, as expounded by Mr Francis QC, is essentially as follows.

    39. a. That the PNA has been vitiated by duress, or undue pressure, or the exploitation by the husband of a dominant position over the wife, after taking into account the wife's emotional state and the pressures which it is said that she was feeling under at the time. He suggests that:
    i. Although the wife had received prior legal advice, its impact should be lessened because she had not read it or sufficiently absorbed it prior to concluding the agreement, because of the pressure she alleges were placed on her by the husband.
    ii. Evidence of the necessary pressure is found in the PNA itself, because, the wife says, it is a dishonest document, asserting that the parties are hoping for a reconciliation at a time when the marriage had already broken down irretrievably.
    iii. The issuing of a petition by the husband on 23rd February 2011, prior to the progressing of negotiations around the PNA, demonstrates that the husband had already concluded that the marriage was at an end; his subsequent urging of a PNA was therefore a cynical ploy to secure a better divorce settlement.
    iv. Negotiation without disclosing the fact that a petition had been filed was underhand behaviour on the part of the husband and his solicitors.
    v. There is evidence in the emails and letters sent between the parties that the husband was acting in a bullying fashion toward the wife, supported by her oral evidence.
    vi. Reliance should be place on the incident alleged by the wife to have taken place on 14th March 2011, when she says (in her statement and in her oral evidence) that the husband took hold of her clothes at the neck, and threatened her with his fist.
    vii. The fact that the wife entered into the agreement contrary to advice from solicitors and counsel is of itself evidence that she did so under duress
    viii. A contrast should be drawn between the wife's waiving of privilege in relation to her solicitors' files, and the husband's failure to do so.
    b. Even if not vitiated by duress, the PNA is 'plainly unfair' in that its implementation leaves the wife in a position of real need.
    c. If the PNA is set aside, Mr Francis QC suggested in opening that the Court should then have regard to computation – essentially the calculation of the value of the matrimonial assets in the case – to assess what could then be said to be the value of the wife's sharing entitlement.
  39. I shall deal with this last point first, for the quantification and distribution of the wife's matrimonial entitlement, which would in the normal course of events be the first exercise with which the court in determining a financial remedy claim would concern itself, was never going to be a practical possibility at this hearing. Not until the opening of the case, and after the conclusion of judicial reading, did Mr Francis QC seek both to articulate and to quantify his client's case in this regard for the first time. He defended his position by reference to the passage in his client's open offer letter dated 18th November 2014, in which it was said: 'In the event that it is not accepted before the final hearing commences, our client will not be restrained by her proposal, in particular in seeking a greater and fairer share than 7.5%.'

  40. In the parties' agreed case summary dated 9th March 2015, the wife's proposal was re-stated as her receiving a lump sum of £2 million, in addition to the provision already granted to her by the PNA, with some additional pension sharing. Whilst a question asked of the court in that document, if the PNA is not accorded full weight, is: 'What is the fair award having regard to all the circumstances of the case?'; no answer is provided in the document on the wife's behalf other than an award in terms of her open position, which is not calculated by reference to sharing. Further, in terms of computation, the only number offered in the document for the husband's 'un-investigated' wealth was 'not less than £37m'. No attempt has ever been made in the circumstances of this case to tease out the matrimonial assets from the non-matrimonial.

  41. Consequently, had the court taken the view that the PNA was valueless and that this wife had a full sharing claim which ought to be investigated, the matter could not have been satisfactorily concluded at this hearing. As Holman J has recently restated in Luckwell v Limata [2014] EWHC 502 (Fam), it is the court, and not the parties, that decides the ultimate question of what provision is to be made; but an important element in that decision can be to consider how the parties have advanced their own case through what has already been very expensive litigation. In the event I am satisfied, as will appear from this judgment, that full justice to the wife's claim can be done without further lengthy and expensive investigation into the detail of the husband's finances, so the lacuna does not matter.

  42. The Assets. Notwithstanding the difficulties in carrying out a precise calculation of the value of the matrimonial assets, a joint schedule has been prepared for this trial setting out what the parties have and how they hold it. The main computational issue relates to the value of the husband's business interests, in relation to which the wife's approach is to take a simple balance sheet valuation in relation to the various companies which he controls, by which she arrives at a total of £49.7 million for the value of his business assets. The husband's own figure is somewhat discounted at £35.1 million, and this is the principal cause for the variance in the asset totals provided for each party: £54.3 million for the wife; £38.4 million for the husband. In fact, neither side have sought to attempt any reconciliation, and the disparity has no effect on outcome.

  43. Of more importance are the figures for the assets which the wife has, following on from the implementation of the property transfers anticipated by the PNA, and consequent upon its terms being enforced, if they are, at the determination of this claim. She has in her possession 2 properties, both those passed in the 2011 negotiations, which are Lynwood – her present home, which is unencumbered with a net equity after costs of sale agreed at £533,500; and 7 Meadow Close, a smaller investment property which I shall take to have a value of £250,000 – the value ascribed for mortgage purposes recently, when the wife borrowed £151,045 against its security to fund in part her costs of these proceedings. This produces net after 3% costs of sale an equity value of £91,455. Disregarding the value of her car, her other agreed assets comprise just £307 in bank accounts, and £12,745 in her pension fund.

  44. To this must be added the offered pension share from the husband, which is expressed to be 50% of the fund value as it stood in November 2012 – or £214,500. This means that without regard to her liabilities, and before considering the issue of the disputed loan to her son, the wife currently has cash/property of £625,262, and pensions, after the pension share, of £227,245. A total of £852,507.

  45. The husband contends that added to this total should be the value of the loan made to the parties' son Will in 2009, in the sum of £285,000. The wife's case is that this was a gift and should be ignored. Further, amongst her liabilities she lists a loan from Will, in the sum of £86,000, which she proceeds to deduct from her assets. In addition she still owes her solicitors, after the above referred to mortgage over 7 Meadow Close, the sum of £85,738. She has other current debts of £2,461. Once the wife has taken these liabilities from her schedule, her case is that before pensions she has capital of just £428,312. I shall deal with my findings in relation to her assets below.

  46. The Evidence. In order to determine the strength of the case which the wife puts, it has been necessary to assess carefully both the produced documents and the oral evidence which both parties have given to me during the course of the final hearing. Following that analysis a clear picture has emerged. I shall deal with the separate elements of the wife's case in turn. Firstly, and despite receiving copious amounts of specialist matrimonial advice, the wife says that she failed to properly read or understand it, and consequently that its receipt is not an insurmountable hurdle to her in throwing of the burden of the agreement.

  47. The wife's task in relation to this first limb of her case is made much harder by the history which has emerged during the course of the proceedings. This has seen her visit a matrimonial specialist solicitor – the same Mr Stokes who now represents her in these proceedings – twice before the PNA came to be discussed in 2011. First she saw him in 2006, long before the parties' marriage. She told me that that was just to discuss her position in the event of Mr Hopkins' death – and not to do with any perceived difficulties in their then cohabiting relationship. This contention is not entirely supported by Mr Stokes' attendance note of that meeting, at which she told him that: 'We have been living together – it's been hard work. I love him I'm not sure that he loves me…we have talked about splitting.' Further, the letter of advice which Mr Stokes wrote to the wife subsequently in July 2010 stated that: 'Notwithstanding your consultation with me in March 2006 and the advice I gave you, you separated from Mr Hopkins in November 2008'. So it is clear, as I find, that in 2006 the wife did seek advice from Mr Stokes about her position in the event of relationship breakdown, despite her denial.

  48. Further, in 2010, when the wife saw Mr Stokes again just 15 months after the parties' marriage, there can be little doubt of the purpose for which that meeting was arranged. In his 21 page letter of advice, Mr Stokes makes it very clear. 'You have asked me to advise you with regard to matrimonial causes and, prospectively, to represent you in them'. The advice which he gives her in that letter (described as a 'summary' to follow their meeting, although he had also undertaken some further research into the husband's asset position) is full and careful. It is based upon the premise that the husband's resources encompass at least £46-7 million. The wife's evidence is that she simply did not read the letter fully through at all until she went back to Mr Stokes, long after the PNA was signed, in December 2012.

  49. She maintained this position, even though it is clear that she initially had it sent to the address of a friend, so that the husband should not know that she had obtained it. Notwithstanding that subterfuge, she told me that on receipt she merely skim read the first few pages and then gave up. This might just have taken her to the point on the fourth page of the letter where Mr Stokes wrote: 'You have asked me advise you with regard to the financial provision, which will be made for you on divorce'. Her case is that she did not read on. She also told me that she did not read further when Mr Stokes resent the letter by email in November 2010, even though she referred at the time to her husband's reaction 'if he'd known what you'd actually sent me'. Finally, on 21st March 2011, she told the husband in an email that she 'didn't even read David's letter until the last few weeks'. Yet her case now is that she failed to read the letter through at all for a further 21 months after that. I cannot accept this, given the content of these emails. I find that at the very latest by the time she went to see Mr Martin in late February 2011, and probably earlier, she had read Mr Stokes letter through, properly and to the end.

  50. Further, in relation to her receipt of advice, she also said that she did not fully read or take on board the advice provided for her on Mr Martin's instruction by Alexander Thorpe, on 5th July 2011, in which Counsel was so clear both in his disapproval of the terms of the proposed agreement, but also of the watertight nature of that agreement if, having received his advice, the wife signed. Again, the email evidence would suggest that the wife was at least aware of the tenor of the advice once she had received it. She says in terms in one of her 6th July emails that: 'Counsel's suggestions of huge rewards are of no interest to me'. The email itself betrays a significant understanding of the content of the advice. I will deal with her case that the husband dictated to her this and other emails below. For now I simply say that even if this were true, that does not mean that the wife had not read the document, and there is no doubt that she had every opportunity to do so before signing, if not by the date of that email then certainly over the 3 week holiday which she then took apart from the husband later in July 2011, before returning to sign on 1st August. She also then paid for this advice, which Mr Martin had, expressly, charged for in his bill. Given also that I have disbelieved the wife in relation to her evidence about her failure to read Mr Stokes' letter, I have no hesitation in finding that she took the opportunity to read the advice from Mr Thorpe at some point before signing the PNA as well.

  51. Finally, the disclaimer which the wife signed on 1st August 2011, after returning from her 3 week holiday away from the husband, is clear and unequivocal. She acknowledges that she has read the PNA carefully and believes that she fully understands it, and that she has been advised that it is not in her interests to sign it. Her oral evidence was that her whole goal at the time of signing the disclaimer and the PNA was to leave the husband. She said that if she hadn't signed she would never have been able to get away. It is clear from the emails that she had been sending that she was keen to progress the negotiations, sign the deal and complete her separation. It is equally clear that the husband was less keen to bring the relationship to an end. He still hoped, even after August, that they could be reconciled.

  52. Mr Francis QC for the wife suggests that the contents of the PNA were based by the husband upon information which he had gleaned from reading the 2010 letter of advice sent by Mr Stokes to the wife. I find that this allegation is not made out, as the suggestion for the transfer of Lynwood came from the wife herself, and is not referred to in Mr Stokes' letter. Whilst the wife accepted that she never asked for more than the provision offered, she had also told the husband that she had seen Mr Stokes, and knew as I find at the latest during March 2011 that her husband had seen his letter of advice. I do not accept that the husband's reading of that letter had a material effect, either on his position in the discussions, or on the wife's.

  53. By the time she signed the agreement, the wife well knew, as she had been advised, that if she waited for the court process she might get considerably more, and that having been so advised, any agreement to receive less would be 'watertight'. I do consider that, having received that advice, the burden clearly shifts to the wife to demonstrate that notwithstanding the advice, her free will was nevertheless overborne by the husband. It is clear that for her, at the time of signing, immediate separation was more important. That was something which she wanted to achieve, and which the husband wished to avoid. I have to consider whether in those circumstances she signed because of any improper pressure from the husband, or simply because the wife wanted to bring the partnership at least in the short term to an end.

  54. The next part of her case is that the PNA document is dishonest in purporting to record the parties' intention to preserve their marriage at a time when both had accepted that it had irretrievably broken down. Here, she relies heavily on the fact that the husband himself had given instruction to PHB to file a divorce petition in London on 23rd February 2011. She asserts that this is evidence that all of the husband's subsequent negotiations with her ostensibly to effect a reconciliation were disingenuous, in that he had already determined, in any event, that their marriage was at an end.

  55. The husband's case is as follows. He had been told by the wife of her visit to Mr Stokes in July 2010. When searching for the parties' marriage certificate prior to his first visit to PHB, he accepts that he found, and read, the letter of advice that Mr Stokes had written to her following that meeting. He told the wife that this had happened. He did not tell PHB of this until much later, in 2014. The letter included express reference to the starting of proceedings in Bristol or Exeter, potentially before HHJ Wildblood QC, a judge with significant financial remedy experience. The husband knows that judge. He was concerned that the proceedings, if they were to follow, should not proceed in his local area where confidentiality might be threatened. He therefore instructed PHB to issue in London as a precautionary measure. The petition was not served for another month because he was still then hoping to effect a reconciliation.

  56. I accept what the husband told me about this. It accords with an email which he sent to the wife on 21st March 2011 in which he said in terms, 'I don't want to have my personal life exposed locally'. Whilst the practice of issuing petitions asserting marital breakdown tactically, which are not then served whilst the parties continue to negotiate to preserve their marriage, is undesirable, it does undoubtedly happen. It is especially inappropriate where jurisdictional issues are thereby created. Thankfully that has not been the case here. It is however instructive that, when both sides briefly agreed that divorce was inevitable and that financial proceedings would follow on 22nd March 2011, PHB immediately served the petition on the wife. However inappropriate, I accept that the filing of the petition in London was a step taken to avoid a local dispute by the husband, rather than an indicator that he had already determined that the marriage was at an end.

  57. I reach this conclusion especially in the light of the history of the parties' relationship to this point, their correspondence, and the wife's own account that the husband throughout was continuing to seek a reconciliation with her. For example, on 21st March 2011 she sent an email to Mr Martin in which she said this: '(Baroness Shackleton) advised him to start the divorce proceedings on their first meeting, before I met you I believe, but he asked her not to send the papers out because he was hoping for a reconciliation, and it would upset me!' I take this to be entirely consistent with the husband's case on this point. I also keep in mind that when in 2008 the parties had separated for a short period, the letter which the husband wrote prior to the wife's return was in very similar terms to those which he sent in 2011 especially the second letter sent on 17th June, where he essentially attempted to take all of the undoubted problems in the relationship onto his own shoulders in an attempt to win the wife back. The trick had worked 3 years earlier, after she had actually left the home. That it was not to do so again, whilst they were still under the same roof, was not I accept a foregone conclusion in his mind at that point.

  58. I thus conclude that during the negotiations and up to the point in July 2011 when the parties went on separate holidays prior to returning and signing the PNA at the beginning of August, there existed in the husband's mind at least a genuine hope that the relationship could be saved. And whilst the wife had evinced a determination to exit the marriage throughout the period of the negotiation, starting with her initial expressions to Mr Martin on 26th February that 'the marriage had broken down irretrievably and that there was no chance of saving it' she nevertheless engaged in counselling until April, and agreed to the conclusion of a Post-Nuptial Agreement, which concessions at least must have been sufficient to give the husband a measure of hope that the marriage could be saved. The letter which she sent in June 2011 headed 'How Things Could Change!!' is only consistent with her giving the husband to believe, whether or not honestly, that there might still be some hope for the relationship. The PNA was not consequently 'a dishonest document' when signed in August 2011.

  59. However, that is not the end of the story, for the wife now says that the reason why, despite asserting her belief that the marriage was over, she negotiated and then concluded the PNA, was because she was under duress, undue influence or improper pressure from the husband, which was sufficient to overbear her free will in entering into the agreement.

  60. In support of her case, the wife cites the two letters to which I have referred, sent to her by the husband in November 2008 and June 2011, in which he does acknowledge that he has been guilty of 'bullying' towards her, and appears to accept sole responsibility for the difficulties in their relationship. As I have already indicated, I do not read those letters literally in that way. In relation to the second, I am satisfied that it must be read together with the earlier letter sent on that day, in which the husband provided a more balanced analysis of the issues between them and made suggestions for both to adapt their behaviour if the relationship was to survive. I consider that the fact that he felt the need to send the second letter itself is indicative of a relationship between the parties where he is at least at that time exhibiting little effective control in their relationship.

  61. The wife places pivotal reliance upon the incident which she alleges to have taken place on 14th March 2011. She first referred to it in a telephone conversation with Mr Martin on 21st March, when she said that 'when they were discussing the finances on the last occasion, he got her by the throat physically'. It is noticeable that she does not make the allegation until after receipt of the letter from Mr Martin on 18th March in which he states: 'I fear that you may be being bullied by Mr Hopkins'. Prior to that, she speaks to him on the telephone on 15th March, and sends emails on 15th and 17th, in which she does not mention the incident. She does express herself to be at a low ebb, feeling the after-effects of flu, and embarrassed to be thought weak for agreeing to the terms which the husband is offering.

  62. She replies first to Mr Martin's letter by email earlier on 21st March, saying: 'You are completely right in what you say, I am still being intimidated'. Although she uses the word 'still', there is no note or record on Mr Martin's file to indicate that she has made the allegation before. She concludes the email by saying: 'As Bill has been constantly asking me to stay and being very sorry for his behaviour, it is quite difficult to deal with.' She does not refer to any assault. There then follows the telephone attendance note in which the allegation is made. Much later, in a statement dated 9th January 2014, she provided more detail. She accused the husband of having 'badgered and harassed her' about the PNA from the beginning of March 2011, and on 14th, when she asked him about the fairness of the provision which was proposed, she said: 'He became uncontrollably angry, grabbing my clothing under my chin, tightening my clothing around my neck and with his other hand raising his fist above my neck'. She continues that as a result she felt 'distressed, apprehensive and intimidated'.

  63. It is the husband's case that the incident alleged simply did not happen at all. I am satisfied that it did not happen in the dramatised fashion recounted by the wife in her 2014 statement, and repeated to me in her oral evidence. I am not satisfied that there was not some physical tension between the parties, at what must have been an extremely fraught time between them, but it is clear that whatever form it took, its effect on the wife was not such that she was rendered thereafter incapable of forming her own mind about the issues under discussion. I bear in mind too that she does not allege any other incidents of physical aggression from the husband at any point during their relationship, and that it is not something for which he ever felt the need to offer apology in his 'mea culpa' letters in 2008 or June 2011.

  64. In fact, as I find, her mindset at the time is fairly depicted in her own emails sent to Mr Martin, and set out at paragraph 15 above. In particular:

    65. a. On 15th March, Mr Martin 'discussed the matter in full and Mrs Hopkins was pleased that we had spoken about this'.
    b. On the same day, she sent an email in which she said that she had 'thought long and hard, and really want to go with her original wishes, to agree to the settlement… signing the post-nuptial settlement this way will be almost instantly achievable, and this is very important to me. Although I would not want to go into battle with Bill, I also do have a vested interest in staying 'friends', for my son's sake if nothing else…'
    c. On 21st she said: 'Part of me just wants to get (out) or should I say run away, and feels fairly content with what he is offering me. The other side is saddened by his offer, and being advised by yourself and loved ones not to agree... Bill puts such a plausible case of what his solicitor has advised, and saying if I'm expecting more, and he has to reveal his assets, he threatens court.'
  65. I find in the light of these emails that the wife at this time was rational, thoughtful, saddened by her situation, but certainly well capable of independent thought. She knew her own mind, and was keenly aware of her own objectives. There is no evidence that at this time, just after the alleged incident upon which her case now places so much reliance, that her will was overborne and she was not capable of balancing the alternatives before her. In this context, I find that the fact that the wife chose to reject the professional advice that she was receiving was entirely explicable, and not reflective, of itself, of any improper pressure being applied to her by the husband.

  66. Indeed, it is also significant that Mr Stokes' long letter of advice sent in July 2010 makes no reference to any serious allegation made to him of bullying or intimidating behaviour. Mr Francis QC for the wife does point to the attendance note of the parties' meeting, dated 7th July 2010, where he has written down: 'Verbal "abuse"/"mean"'. But that is just one a raft of complaints, which included disinterest in their son's wedding, treating her as a housekeeper, never having her own choice & 'petty stuff'. It is noteworthy that Mr Stokes' translation of this into his letter of advice was to write: 'On the basis of your instructions you are in a position to allege his unreasonable behaviour. I dare say that he will consider that he can allege yours.' This, sadly, suggests a couple who were simply not getting on, without especial blame or imbalance on either side.

  67. Next, it is the wife's case that a number of important emails which she accepts she sent to her solicitor were in fact dictated to her by her husband. She accepts that she never told Mr Martin of this. These are said to be those sent on 15th April 2011, 1st July 2011, and then 2 sent on 6th July 2011.

    68. a. The first of these (15th April) is simply an email in which she chides Mr Martin for what she sees as his slow response to PHB, and expresses anxiety that the financial application should be withdrawn from Court. Whilst these sentiments may have been shared by the husband at this time, they are both echoed in earlier emails that she accepts that she sent. On 21st March she tells the husband that 'there is absolutely no reason to go to court, as I've said from the beginning'. On 7th April, she expresses herself to be 'quite anxious' to see the heads of agreement of the post nuptial settlement. In using the term Ancillary Relief Form A she was picking up a phrase from PHB's letter of 6th April which she had seen. I am therefore unable to conclude, in the face of the husband's denial, that this was a dictated letter.
    b. On 1st July, the wife apologises for being short with Mr Martin, then complains and asks why he had not already raised queries on the draft PNA. She goes on to indicate her satisfaction with the settlement and indicate that she sought no amendments. She had sent emails with similar tone and content on 10th and 21st June. Her statement that 'no likely award from a court case is of interest' is also entirely consistent with what she has said earlier. Again, there is no reason here why her case that this email is not her own composition should be preferred. The fact that an incomplete draft was sent to Mr Martin is not probative either way, and again I cannot on balance find that this email was dictated to her.
    c. The 2 sent on 6th July are as I find more difficult; especially the wife's statement in the first email that: 'We are still living together, having counselling, and trying to resolve our differences.' Also, the reference to the parties going on holiday, without indicating that they would in fact be in separate places for different durations. The balance of the missive reveals that the author had certainly read Alexander Thorpe's advice, in some detail. The wife indicates that she will have her computer with her on holiday, so will be able to respond to any necessary amendments while she is away. She finally states that 'it is a disappointment to us both' that the agreement is not yet finalised. I conclude that the husband probably did have some input into the drafting of this email, but that parts of it certainly came from the wife alone. There is no sufficient evidence to establish whole scale dictation, but perhaps cooperation in relation to the line that the parties should take with their advisers at this point.
    d. The second email of 6th July, sent later that evening and querying Mr Martin's proposed deletions from the draft PNA may have been drafted after discussion with the husband, but I do not find on balance that it must have been dictated by him. There is nothing in these emails as a whole which supports the wife's case that she was suffering from improper pressure from the husband over this period, or that she was not expressing her own views or thoughts, even if on occasion shared with the husband, when she communicated with her solicitor.
  68. I have considered whether the husband's own confession to bullying behaviour in his letters without more can be sufficient to vitiate the wife's signature on the PNA, or might support the wife's case in relation to the other allegations which she makes. Given that there is no persuasive detail of the form which this bullying took, or was taking at the time when the agreement was discussed, I find such a suggestion difficult. The wife placed particular reliance on an email sent to her by the husband on 21st March 2011, which read: 'Please can you let me know, if we are going to progress this, have you given your solicitor the instructions that we discussed last week?' I did not read this to be overly sinister, as the wife has suggested. Indeed there is no credible evidence to support the wife's assertion that during the relevant period she was being 'controlled' by the husband. And given the significant flaws I have identified in the rest of her evidence to me, I cannot rely upon her unsupported, and self-serving, assertion.

  69. Moreover, in relation to any perceived physical or emotional threat, from the critical month of March 2011, 4 more months followed while financial disclosure was exchanged and detailed advice given, during which there are no further or more striking allegations made. In June 2011, the husband offered fulsome apology for his behaviour, motivated as I have found by a desire to rekindle the relationship. During July, the parties were apart on holiday, and had ample time to think things through. It is only after all of that that the wife returned to her solicitors' office, and signed the document.

  70. I must also have regard to Mr Martin's clear and unqualified observations of the wife's condition and frame of mind in early August when the agreement was signed and dated. He describes her as 'entirely comfortable', and 'cool, calm and collected', and concludes: 'I have absolutely no doubt that for whatever reason she wanted to do what she was doing in the full understanding of the consequences thereof.' Although the wife tells me now that however she may have appeared, she was not in fact in that state, I am driven from all of the above circumstances, and the fact that she has not chosen to call Mr Martin as a witness, to find that his observations of her at this time must carry weight. I accept what he says.

  71. I draw further support for my findings from the fact that it was not until the end of November 2012, nearly 16 months later, that the wife finally determined that she would challenge the agreement, although she had not been living under the same roof as the husband since the signing. Indeed, had there not been an issue between the parties about the removal of certain plants for the garden of the former matrimonial home in the summer of 2012, she might have served the signed consent order then and accepted the full force of the agreement. It is difficult to reconcile that position with the wife's case about the effects on her of her relationship with the husband in 2011.

  72. I cannot, and do not, draw any inferences at all from the fact that the husband has not waived privilege in relation to his file with PHB in relation to the events at the time when the PNA was being discussed and signed. I have in any event been able to draw a clear picture from the materials available, and from the evidence that I have heard, of both parties and the relationship in which they were involved. Whilst the husband on occasion was predictably reticent on occasion to provide an answer which he thought might be prejudicial to his case, generally I found him to be an honest witness, and, save where I have said so expressly above, I preferred his evidence to that of the wife.

  73. Finally I am also driven to find that the wife has deliberately sought to underplay the agreement which she entered into with the husband on 4th January 1989 in relation to the maintenance of their son William. That agreement, which she signed, essentially records that the husband made her a gift of £50,000 in transferring to her at an undervalue the property in which she and William were then living. That she later sough to suggest that a further unreferenced cash transaction took place through her then husband Mr Griffiths, in an uncertain amount, cannot be sustained and is not supported by any independent evidence. I accept the husband's account in relation to this agreement.

  74. Having made those findings, I now have to decide where they take me in determining the applications before me. I remind myself of the checklist provided by Counsel and endorsed by Holman J in Luckwell v Limata [2014] EWHC 502 (Fam) at [130]. It begins thus:

    75. '1. It is the court, and not the parties, that decides the ultimate question of what provision is to be made;
    2. The over-arching criterion remains the search for 'fairness', in accordance with section 25 as explained by the House of Lords in Miller/McFarlane (i.e. needs, sharing and compensation). But an agreement is capable of altering what is fair, including in relation to 'need';
    3. An agreement (assuming it is not 'impugned' for procedural unfairness, such as duress) should be given weight in that process, although that weight may be anything from slight to decisive in an appropriate case;
    4. The weight to be given to an agreement may be enhanced or reduced by a variety of factors;
    5. Effect should be given to an agreement that is entered into freely with full appreciation of the implications unless in the circumstances prevailing it would not be fair to hold the parties to that agreement. i.e. There is at least a burden on the (applicant) to show that the agreement should not prevail;
    6. Whether it will 'not be fair to hold the parties to the agreement' will necessarily depend on the facts...'
  75. It will be apparent from the above that I reject the wife's case that she was operating under any undue influence, duress or improper pressure when the entered into the Post-Nuptial Settlement, which I do not find to be the dishonest document which Mr Francis QC characterises. There is simply no sufficient evidence to sustain a case to this effect. I must therefore give it due weight in the discretionary exercise under s.25 of the Matrimonial Causes Act which now follows. I find that it was entered into freely by the wife, and with full appreciation of its implications – she had received and understood copious volumes of legal advice from different sources going back years. There is also no sufficient evidence that the wife's emotional state in early August was such that her participation in the signing can be undermined. The available evidence from Mr Martin is to the contrary.

  76. However, there remains the over-arching search for fairness, and whilst the existence of the agreement certainly may alter significantly what may be seen as fair in the circumstances of this case, I have also to consider whether the agreement if now applied does leave the wife in a predicament of real need, in circumstances where there can be no argument but that the husband has more than a sufficiency. At paragraph [81] of Radmacher, the Supreme Court made this expressly clear:

    77. 'Of the three strands identified in White v White and Miller v Miller, it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement...'
  77. In Luckwell v Limata (above), Holman J expressed the relationship between the agreement and any needs argument thus:

    78. '[138]   On the facts of this case there is only one consideration which is capable of outweighing the above considerations and capable of having the effect that the agreements should not be applied rigorously and to the letter. That consideration is current and likely future need. During the course of his oral argument Mr Marks submitted that "needs trump the agreement(s)". I profoundly disagree with that submission. There is no question of needs being a "trump card". They may, however, outweigh the fact of an agreement in the overall circumstances of a particular case.'
  78. Real need in this context is not to be equated to 'reasonable need', as the decision in Radmacher made clear. As Mostyn J in N v F [2011] EWHC 586 confirmed at [18], in Radmacher 'the husband's needs were cut right down to a level that would have been inconceivable had there been no pre-nuptial agreement.' Lord Phillips description of a circumstance where the court may have intervened was stark indeed:

    79. '[119]... Had the husband been incapacitated in the course of the marriage, so that he was incapable of earning his living, this might well have justified, in the interests of fairness, not holding him to the full rigours of the ante-nuptial agreement. But this was far from the case.'
  79. In this case too it is relevant to bear in mind that the terms of the PNA as they evolved were largely based upon express requests from the wife. She sought the transfer of Lynwood to her, despite its ownership not by the husband but by one of his companies, and he agreed. There is an overage clause in favour of his company, which is something with which the wife does not wish for, and he is now prepared to remove. In addition she sought the investment property at 7 Meadow Close, then unencumbered, and the Audi car. It does not appear that she made any further specific requests. The further lump sum, which later became a pension share, was added at the husband's suggestion, quite possibly to avoid any predicament of real need arising.

  80. Mr Thorpe's advice in 2011, based upon the wife receiving a lump sum of £350,000, and no pension share, but then using that sum to buy an annuity, was that she would derive an income of £25,664pa, to include rental income, and without the burden of the mortgage which she has since taken towards her costs bill. He had been told that the wife was not extravagant, and would struggle to set out a budget of £50,000pa. He took that figure as her income need, to produce a requirement for a fund of around £900,000. In fact, in her Form E dated 27th March 2013, she set out a current budget of £34,676pa. Whilst she also provided an 'anticipated' figure that rose to nearly £75,000pa, she made little attempt to defend it in her oral evidence. I consider that her real needs do encompass being able to live at the rate of £36,000pa., a rounded up Form E figure, once other liabilities are discharged. Given that it accords with her own expressed case, this cannot be seen as unduly restrictive.

  81. The wife's 2010 wish list as provided to Mr Stokes also included a housing fund of between £400,000 and £600,000. In Lynwood, she has that. In her Form E she sought a property fund of some £900,000. She suggested in her oral evidence that she might be contemplating a move to London. I am afraid that this in her was opportunistic. The basis of the agreement which she entered into can be taken to have been that she would have Lynwood to live in and just sufficient other assets to provide her with her necessary income needs. The wife will be 63 on 3rd April 2015. A Duxbury sum to provide £36,000pa for her, inflated at 3%, and with recourse to a state pension, would require a sum of £500,000. At present the terms of the PNA will leave the wife with £91,455 in Meadow Close and £227,245 in pensions. I disregard the value of her car and the small amount she has in a bank account. Together, these two sums total £318,700. She is thus £181,300 short.

  82. It is then necessary to consider the other debts which she alleges, totalling £174,200, and the status of the provision which she made in 2009 for the parties' son William. There can be little doubt that until June 2011, every reference to the provision made was reference to a loan, rather than to a gift. Mr Stokes' 2010 attendance note does record that 'He (the husband) said you had money and gave it away', but it is also clear in recording instructions that the wife told him that she had made a 'Loan to William c.£300k interest free to buy and do up house'. His subsequent letter of advice describes this loan as the wife's 'only significant asset'. It is simply not credible that he was mistaken in recording his instructions to this extent, and I find that the wife certainly described the payment as a loan at that time. Similarly, Mr Martin's first attendance note in 2011 describes the wife as having 'lent' the funds. On 20th June 2011, he asks her to provide him with the date of the loan, and it is in reply to that email that for the first time a different account is given.

  83. Strikingly, Mr Martin records the wife on 21st June as 'reiterating' the gift of the property to William, although this is the first time it has been so discussed. He also records for the first time that 'the arrangement was that William would share his gift with Samantha and Henrietta'. By contrast, in 2010 the wife had told Mr Stokes, and he recorded in his letter, that: 'William is expected to make arrangements soon, now that his house has been renovated, to repay about two thirds of the loan, with the balance being forgiven as part of a family arrangement, which you have made with Mr Hopkins' concurrence.' The husband denies knowledge of the arrangement, and it is clear that the wife's account has shifted dramatically over time. The inevitable conclusion is that her current position is not an honest one, and that the money was indeed provided as a loan.

  84. This is magnified by the fact that amongst her liabilities she asserts a debt to William, on account of funds borrowed to pay legal fees, in the sum of £86,000. She was constrained to acknowledge that, in the event that she was unsuccessful in her claim, he would not seek repayment of the funds. Given that I have rejected her evidence in relation to the loan, I must take that figure as no more than a part repayment of the sum that I find to be due. The other principal liability is to her solicitor, in the sum of £85,738, and is clearly due however.

  85. I have determined in relation to the loan that the appropriate position to adopt is to accept the account given by the wife to Mr Stokes in 2010 as being what was in her mind at that time, and also as being a reasonable position for her to adopt in relation to the loaned money. I accept that the husband had not been told of this at the time, but I consider it appropriate to treat the outstanding sum due from William as being two thirds of the sum due, or £190,000. Of this, William has evidently repaid £86,000, which leaves a further £104,000 still owing. This is just more than enough to meet the wife's additional unpaid legal bills and other smaller debts - £88,200. These can therefore be set off against each other, leaving the wife with a small surplus of £15,800.

  86. The wife's shortfall, apart from that surplus, and if she is not to be placed in a situation of real need, has been quantified over and above what the PNA provided for her in the sum of £181,300. In addition to indicating through Mr Todd QC that no costs order would be sought in the event that the PNA was upheld, the husband offers an additional payment to the wife in the sum of £200,000. It can be seen that this is almost exactly sufficient to meet the wife's needs as I have quantified them, adopting the housing needs she herself has expressed at the time of the agreement, and allowing her to maintain her unvarnished Form E budget. The further surplus of £18,700 may leave the wife with total additional funds of £34,500, which she should retain.

  87. I must finally ask myself whether such an outcome meets the overarching criterion of fairness in all the circumstances of this case. I acknowledge that this may be some distance from the order which the Court might have made had there been no agreement, or had the agreement been accorded no weight. The Court may then have had to involve itself in questions of valuation, active or passive growth, mingling and the quality of cohabitation – with uncertain outcome. These parties have been spared all that.

  88. I have considered carefully whether it is appropriate that this agreement alters what would otherwise have been considered fair. I have found that this was an agreement freely entered into on both sides, and with full advice. It achieved what the wife was very keen to achieve at the point of its completion, that is an immediate escape from the husband, despite his desire for reconciliation. She understood at the time that it was a watertight agreement which would bind her, and she thereafter accepted it as binding upon her for a further 16 months. It is not an agreement which pays no regard to her needs.

  89. I bear in mind as well that the wife's case before me has been principally for a generous needs based assessment. This in itself must be a reflection of the fact that this agreement represents an acknowledgment by both parties that needs based quantification is fair to the wife. The difference between their two positions has essentially been whether those needs should be generously or more realistically assessed. That therefore is where the existence of the agreement has made a difference. That is fair.

  90. I ask too whether it would be fair to the husband to disregard this agreement. In this regard I bear in mind particularly paragraphs 70, 72 and 78 of the Supreme Court's decision in Radmacher cited above. In the absence of any compelling evidence that the wife did not enter into this agreement of her own free will, as she contends, and in the face of clear evidence that she had comprehensive advice about her entitlements otherwise, and the binding nature of the agreement; and further that she herself, notwithstanding that advice, has not seriously contended for more than a needs based award, which is what the agreement had given her; it is fair to hold her now to the terms of the PNA, and conversely unfair to the husband to make any different provision.

  91. This result, which will consequently be that which I order, will mean that the net cost to the wife of these proceedings will have been £120,567 (her total costs less her lump sum award); to the husband the cost will have been £638,087 (his costs added to the lump sum). This imbalance reflects the fact that the wife's needs have been engaged, but also serves to demonstrate that those needs would equally have been met by the original agreement arrived at in 2011, and that the need for additional payment has solely been created by the expense of these proceedings.

  92. In his closing submissions, Mr Todd QC suggested that the appropriate order would be, in the event that I accepted his case, a dismissal of the wife's claim on the basis that the husband would make the £200,000 payment. In the event, that payment has been required to meet the wife's real needs, albeit created by the costs of litigation, so I do not take the view that the application should be dismissed by the order that I make. It will however be determined by payment of the sum which the husband has offered.

    93. -----

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