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Kara Swift
Kara Swift
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Date:22 APR 2013
Law Reporter

(Family Division, Parker J, 28 January 2013)

The husband and wife were married for 5 years and had one son together. They divorced in 1991 and entered into a financial agreement in circumstances where the wife was the wealthier party, being the beneficiary of a trust fund, whereas the husband was at the start of his career and had no capital of his own.

The agreement was acted upon but was never made subject to a full court order. The husband subsequently remarried and had three further children while the wife also had another child in a new relationship.

Over the years the husband's business prospered and his business interests were now worth £1.6m, his pension fund was worth £1m and he had other capital interests of £630,000. The wife, however, found her capital fund depleted and mostly tied up in her home with an annual income of under £30,000. She now applied for financial support from the husband in the form of capitalised periodical payments, not backdated but ongoing.

The wife disputed the validity of the agreement on the grounds of material non-disclosure, in particular in relation to the husband's pension, pressure from the husband and pressure from her own solicitors.

The husband opposed the wife's claim, asserting that the agreement reached 22 years ago should be of magnetic importance and that he had conducted his life on the assumption that everything had been agreed.

There was no doubt that the parties intended to resolve their financial affairs in 1991 and that they each acted upon it. In this case the overriding factor was the agreement and the importance that each party placed upon it. This was a paradigm case for the court to conclude that the agreement, having been freely entered into at the time, when both parties considered it appropriate, was the most important, indeed, the overriding factor. The length of time which had occurred since the agreement had been made secured the agreement rather than undermining it, since it was never treated as a nullity or as redundant.

These were not financial remedy proceedings of a normal nature and so the no order as to costs rule would not be applied. Despite the fact that the wife claimed to have no resources from which to pay costs, she had chosen to bring the application and, therefore, she was ordered to pay costs on a standard basis, subject to a detailed assessment.