In the recent case of T v T [2020] EWHC 555 (Fam), the High Court awarded financial relief and costs to a UK-based wife whose husband hid a second family in Moscow, saying this amounted to “marital misconduct”. Associate Tim Carpenter and Senior Paralegal Shammi Ruprah in our Divorce and Family team, examine the decision.

Background

The parties are Russian citizens and were married for 25 years. In 2003, the husband (H) encouraged the wife (W) to relocate to London with their two children (now aged 19 and 23) while he remained in Moscow and visited occasionally. Some 13 years later, on a family ski holiday in 2016 , H revealed to W that he had been living with another woman in Moscow for the past 13 years with whom he had four children (the first of which was born in 2003, around the time H persuaded W to move to London). W subsequently commenced divorce proceedings in January 2017.

Prior to this, H had asked W to sign a post-nuptial agreement in Spain in 2011, which he sought to rely on within the divorce proceedings. The post-nuptial agreement entitled W to an apartment in Moscow on divorce, but only once H’s four other children became adults. It made no other financial provision for W.

Despite evading service of W’s petition, H engaged in without prejudice negotiations through his English solicitors. These were inconclusive and delayed W in advancing her divorce petition in England. Instead, in October 2017 and without W’s knowledge, H secured a divorce in Russia, which became final shortly thereafter. W accepted the Russian divorce although no financial provision was made for her. As a result, W applied to the High Court for financial relief under Part III of the Matrimonial and Family Proceedings Act 1984, which gives the English court the power to grant financial relief after a marriage has been dissolved in a foreign country.

Judicial Analysis

Mr Justice Holman considered the 2011 post-nuptial agreement to have no impact on the W’s claims, as:

• W had received no legal advice,
• there was no prior disclosure from H, and
• W was deceived as to H’s second family.

The judge held that under English law the agreement was “not worth the paper it was written on”.

The judge was very critical of H’s conduct throughout these proceedings, finding that he had “demonstrated contempt for this court and contempt for his wife”, and his behaviour amounted to “marital misconduct”. The judge concluded that “it was hard to imagine a more grave or sustained assault upon the marriage”. Despite H’s behaviour, W’s claim was adjudged to be needs-based as the judge could not share the wealth of an unknown amount, and so the court could only grant what was reasonable in the circumstances.

H’s lack of disclosure raised difficulties in the overall assessment of his wealth and income. W was only aware of the following assets, namely the apartment in Moscow worth around £400,000, 50% of the shares in three Spanish companies totalling €2.25m and some businesses in Russia of which the value was unknown.

Mr Justice Holman was keen to guard against a “cheat’s charter” and wanted to reflect the position in NG v SG (appeal: non-disclosure) [2012] 1 FLR 1211 that “the court must be astute to ensure that a non-discloser should not be able to procure a result from their non-disclosure that is better than that which would be ordered if the truth was told”. Moher v Moher [2020] 1 FLR 225 later clarified this approach, confirming that while the court should attempt quantification of non-disclosed resources, it was not compelled to do so where there was insufficient evidence. On the information placed before the court, H was estimated to be worth £2.7m, although W thought him to be worth significantly more.

Outcome

W’s award was made on a clean break basis. A lump sum of £2.25m was ordered for her housing needs together with interim maintenance of £2,600 per month (backdated to 23 November 2018) until the lump sum was paid in full. No spousal maintenance was ordered. H was also ordered to pay W’s costs of the proceedings on an indemnity basis to reflect his litigation misconduct.

Mr Justice Holman was not prepared to make an order to transfer H’s shares in the Spanish companies if he defaulted on the lump sum, suggesting that she would be able to take enforcement proceedings against those shares in Spain, if required.

Upon the lump sum being paid in full, W would also have to give up her interest in the Moscow apartment, regardless of the provisions contained in the 2011 post-nuptial agreement.

Comment

Partner Sam Longworth commented on the decision:

“This case demonstrates both the courts willingness to take a robust stance against litigation misconduct, and the issues facing litigants who cannot prove that the other party has significant wealth. See also the excellent article by Sophie Chapman following the LFL v LSL [2017] EWFC B62 decision.”

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