Key Facts
- •NO ('W') and PQ ('H') cohabited from 1988, married in 1994, and separated in 2018.
- •H was a successful restaurateur, selling his restaurant in 2017 for £1.8M (net £1.3M).
- •The parties agreed H would invest remaining funds in a new restaurant, with W opting out.
- •H invested approximately £776,000 in the new restaurant, which ultimately failed in 2021.
- •H faces significant debt, primarily from a lease guarantee (£223,876) and other business loans.
- •W proposes a clean break, keeping the FMH and indemnifying joint debts; approximately £625,500 equity.
- •The court considers an informal agreement where H's investment in the new restaurant was understood to come from his share of the marital assets.
Legal Principles
Financial remedies cases are determined on the balance of probabilities, considering all circumstances under s.25(1) and (2) and s.25A of the Matrimonial Causes Act 1973.
Matrimonial Causes Act 1973
The court gives weight to nuptial agreements (including informal agreements) unless unfair, considering factors like needs, compensation, and sharing, and 'predicament of real need'.
Radmacher v Granatino [2010] UKSC 42; HD v WB [2023] EWFC 2; KA V MA [2018] EWHC 499 (Fam); Ipecki v McConnell [2019] EWFC 19; Brack v Brack [2018] EWCA Civ 2862
Dishonesty of a party may affect credibility but requires careful consideration of context (deliberateness, significance, and explanation for dishonesty).
R v Lucas [1981] QB 720; Re A, B and C (Children) [2021] EWCA Civ 451
Unforeseen circumstances can be a factor in determining fairness concerning informal agreements, but seismic events do not justify setting aside final orders.
Edgar v Edgar (1981) 2 FLR 20; BT v CU [2021] EWFC 87
Outcomes
No financial provision for H.
The court found an informal agreement existed where H's investment in the failed restaurant was understood to be from his share of the marital assets. Any award would be swallowed by H's existing debts and wouldn't alleviate his predicament.
FMH transferred to W.
W to indemnify joint debts, with a sale of the FMH in default if H's release from the mortgage is not secured within seven months.
Clean break order for both parties.
Both parties are to be financially independent moving forward.