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ANCILLARY RELIEF: NA v MA [2006] EWHC 2900 (Fam)

Date:24 NOV 2006

(Family Division; Baron J; 24 November 2006)

The husband, who argued that the wife should be held to the terms of the post-nuptial settlement, claimed he was worth about £21.5m; the wife, who was seeking £13.6m, claimed that he was worth £46.5m. Shortly after the husband had discovered the wife's adultery with a close friend of the husband, the husband and wife had signed a post-nuptial settlement giving the wife only £3.3m plus £252,000 pa during joint lives or until remarriage (not to be capitalised) plus provision for the children. The wife obtained legal advice before signing the agreement, but the attendance notes kept by the solicitor suggested that she had been placed under great strain by the husband, who was giving her an ultimatum: sign or end the marriage. When the husband told the wife that she had to sign or leave the matrimonial home, the agreement was signed at the wife's insistence; the solicitor's attendance notes emphasised that the wife had been advised not to sign, and that she was greatly distressed when she signed it, describing serious emotional pressure by the husband. At the hearing the husband's counsel suggested that the wife's solicitors had been pursuing an unprofessional strategy, bordering on fraud, in that they had deliberately exaggerated the wife's situation in the attendance notes in order to provide the wife with a defence to the agreement. These allegations took 2 days of court time.

Before allegations of this gravity were made, there had to be prima facie evidence upon which to make them and the client must give specific instructions for them to be advanced. Counsel must clearly set out the detail in writing before any witness fell to be cross-examined. It would have been much more prudent for counsel to reserve his position, to investigate and to highlight concerns rather than to impugn professional integrity as the effective starting point, particularly given the evidence upon which the allegations were based. When the validity of an agreement was challenged it would be wise for all the solicitors involved in the preparation and signing of the agreement to stand aside in favour of new advisors. The evidence of the wife's solicitors was accepted and they were acquitted of any wrong doing. They had not engaged in any strategy or plan to give their client an exit route, doing their best to advise her in very difficult circumstances. Attendance notes should include all salient points but the fact that points were missed out, words were changed or later emphasis was added did not mean that the record was inaccurate. The wife had been placed under undue influence by the husband, who had used his dominant position, both emotional and financial, to ensure that the wife felt she had no alternative but to sign the agreement. The agreement had not been premised on fairness, having been calculated on the basis of what the husband was prepared to provide and had been non-negotiable; it would be unfair to use the terms of the agreement as a starting point with which to judge the fairness of any award. The husband was worth about £40m, about half of which was held in assets in the Lebanon and Syria. The wife was awarded £9.176m plus maintenance for the children. Counsel in all cases were to cooperate by producing new documents in good time so that opponents could consider them, and were to meet outside court each morning to discuss and cooperate about housekeeping matters or arrange some other fail safe method. Witnesses were permitted to read or study affidavits, which they were required to deal with, but should not be permitted to remove them from the office of the solicitor.