WALES/ENGLAND – High Court upholds separation agreement 22 years later

Court considers the agreement of ‘magnetic importance’

Mrs Justice Parker has granted a husband’s application that a separation agreement signed by the parties in 1991 should be made an order of court.

In T v T [2013] EWHC B3 (Fam), the court heard that an agreement was signed by the parties and conformed with all the requirements of a concluded agreement, but had never been put before the court for approval in the form of a consent order. The wife gave no explanation for that failure, whilst the husband maintained that he had expected his solicitors to do so, and had always regarded the matter as resolved. The wife wanted to pursue an application for financial remedies and argued that the agreement was peripheral to the case. There had been no reconciliation and the parties had relied on the agreement as a basis for their independent lives since their separation. The agreement included provision for a clean break.

The wife argued that there had been material non-disclosure, she had been under pressure from the husband at the time, and that she had been bullied by her solicitor at the time into entering into the agreement.

The judgment reviewed the case law, and the approval of the approach of the UK courts to agreements generally as set out in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, and found that the evidence did not support the wife’s arguments. Both parties had been under pressure for different reasons to bring matters between them to a conclusion. There was nothing to suggest that the agreement was not fair at the time and that the wife had not been competently advised. Parker J asked herself: i) had the parties reached an accord by which they intended to resolve the matrimonial affairs, and ii) how have they conducted themselves?

The court held that this was an agreement which was entered into, intended to be acted upon, and was acted upon. In those circumstances it must be regarded of magnetic importance. The court was under no duty to examine their current means. The length of time since the agreement was entered into further secured it. The husband’s application was therefore granted, with costs against the wife.

Jonathan Crystal of Argent Chambers was instructed directly by the wife. Richard Todd QC of 1 Hare Court (instructed by Withers LLP) appeared on behalf of the husband.

The judgment, prefaced by a summary (reproduced here) written by Jacqui Thomas of 37 Park Square Chambers, can be read here.


SOURCE: Family Law Week

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