H v H [2016] EWFC B81 (04 March 2016)

HTML VERSION OF JUDGMENT ____________________ Crown Copyright © JUDGMENT HIS HONOUR JUDGE BOOTH: This case arises out of the failure of the marriage between Mr and Mrs H. The issues for determination are, first of all, the trial of the main divorce suit and, secondly, the final hearing of Mrs H's application for financial remedy. This includes a determination of Mr H's show cause application as to why an order should not be made in the terms of a prenuptial agreement they signed before they married. I decided at a hearing in December 2015 that it would be convenient to hear all of these matters together. Mrs H has been represented by Mr Wagstaffe QC and Mr H by Miss Harrison QC. I am grateful to both of them for the careful and measured way in which they have dealt with sensitive evidence in this case and the comprehensive and helpful submissions that they have made to me, both on the facts and on the law. The evidence before me is extensive. I have heard both Mrs H and Mr H give evidence and be cross-examined. I have a transcript of the criminal trial to which I will refer in more detail in due course. What I do not have, however, is the DVD of Mrs H's evidence which stood as her evidence in chief in the Crown Court. I have statements from both parties. Each filed a comprehensive section 25 statement. I have a Form E1 from both of them and a Form E from both of them. I have two further statements from Mrs H at an earlier stage in these proceedings and I have Mrs H's Form E from proceedings which involved a former husband. I must first of all investigate the factual dispute between these parties that centres on the circumstances in which their marriage broke down. I remind myself right at the outset that the burden of proving an allegation lies with the party who makes that allegation. No matter how serious the allegation is, the standard of proof is still the same. I must determine these issues on a balance of probabilities; in other words what is more likely than not. In considering my factual determination, I must survey the whole canvass and I must look at all the evidence giving appropriate weight to different parts of it as a way to helping me decide where the truth lies. This process has often been described as putting together the pieces of a jigsaw. That said, it is not necessary nor is it appropriate for me to make findings of fact on every single matter that is disputed between these two parties. I will therefore concentrate in this judgment on the matters that I think are significant. That does not mean that I have not weighed in my thought processes all of the evidence I have heard and read. I must give myself a Lucas direction. People tell lies. The mere fact that somebody lies about one thing does not necessarily mean they are being untruthful about everything. Sometimes people can convince themselves of the truth of something that simply cannot be. Sometimes they may exaggerate so that something becomes untrue simply because they fear the truth might not be believed. There is a particular problem in this case in that this is the second occasion where this couple have given evidence before a court and been cross-examined so that time has been spent investigating inconsistencies in what they have said to me and what they might have said on previous occasions. Those are all matters that I must take into account. As I indicated, this judgment is in proceedings for ancillary relief. What is it that the parties say should be the outcome of these proceedings? Mr H' position is easily stated in that he wishes to uphold the integrity of the prenuptial agreement and in order to avoid this litigation made a commercial offer of a payment of £88,000, but that sum reducing pound for pound by costs incurred by Mr H from the date of that offer. The effect of his offer is that Mrs H would now get nothing. Mrs H's position is a little more complex. When giving her evidence she told me that the only thing that she seeks is justice. For her, justice means a finding that she was anally raped by Mr H. Her solicitors on her behalf have put forward a proposal by way of an open offer to resolve the financial proceedings. She seeks in total £361,000 made up as follows: a house at £220,000; capitalisation of a lifetime maintenance award on Duxbury principles of £77,000; and a payment of her debts, including her outstanding legal costs, of a further £64,000. In determining the outcome of the financial remedy proceedings, I have a two part task, firstly to establish what there is available for distribution and, secondly, to decide how to distribute it by applying the familiar checklist in section 25 of the Matrimonial Causes Act looking to achieve a clean break between these parties. From that checklist, a number of matters are likely to be central to my consideration: the parties' means and obligations; the duration of the marriage; their ages; conduct; and the terms of the prenuptial agreement. At the end of that process, I have to step back and determine what I assess to be a fair outcome between them. So let me set out more of the background to this case. Mrs H is 64 years of age and Mr H is 72 years of age. They met in 2012 and by September 2013 they had an established relationship that, if it was not cohabitation, was very close to it. They married in December 2013 and separated shortly thereafter in March 2014. On Mrs H's case, the breakdown of the marriage after such a short period of time was the direct result of the commission on her by Mr H of an act of anal rape. He was charged with rape and prosecuted but was acquitted by the Crown Court in January 2015. Mr H is a relatively wealthy man and Mrs H has no assets of substance. She has a number of medical difficulties and asserts that she has no realistic earning capacity. Before they married, they entered into a prenuptial agreement, the terms of which and the effect of those terms is not disputed. Each was to retain what they had prior to their marriage and neither was to have a claim against the other. Whilst conceding that that would be the effect of the terms of a prenuptial agreement, Mrs H argues that it would be simply unfair to leave her without any form of financial provision in her old age especially as she contends that it was Mr H' conduct that was the reason for the breakdown of the marriage. She says he would be financially benefitting from his own wrongdoing. I can set out the history of the litigation relatively briefly. As the breakdown of the marriage occurred within a year of its celebration, Mrs H was unable to institute divorce proceedings before December 2014. In May 2014, she made an application for financial support pursuant to section 27 of the Matrimonial Causes Act 1973. That application was heard by me on 27 th November 2014 when I made an order that Mr H should pay Mrs H a sum of £1,500 per month, concluding that the terms of the prenuptial agreement did not cover the circumstances presenting to me – H v H [2015] EWHC B24 (Fam) . In January 2015, Mrs H issued a divorce petition relying upon Mr H's conduct in relation to the act of rape. He denied that allegation and cross-petitioned on the grounds of Mrs H's behaviour in March 2015. Form A launching financial remedy proceedings was issued by Mrs H in May 2015. That was allocated to the Northern Circuit Money List and directed to me. Within those proceedings, an application was made for a legal services payment order. That was determined by a deputy district judge who made an order. Mrs H appealed. I determined that the provision in the order was inadequate. At a hearing in December 2015, I provided that from then onwards Mr H, being the only one with any assets to speak of, should provide Mrs H with £1.00 for every £1.00 he spent on his legal costs. That way, my objective was to achieve equality of arms between the parties and which might have had the benefit of limiting the exponential expenditure on costs that seems to occur in this type of case as they progress to final hearing. Mrs H's Form E dated 14 th August 2015 effectively discloses nothing but debt, including unpaid legal fees, and identifies her only sources of income as being state benefits. Mr H's Form E dated 8 th August 2015 describes him living in a property owned by his daughter. His house in Bramhall where the parties lived during the duration of the marriage is valued at £580,000 and is mortgage free. At that time, he disclosed liquid capital of £60,000, four motor vehicles, and an aeroplane. His income was disclosed at just over £10,000 per month net. There has been no investigation or valuation evidence of Mr H's worth. At the time of the prenuptial agreement, he disclosed a substantial shareholding in H Group PLC worth no less than £3 million. This is a family business that Mr H continues to work in. It is the source of his income and it has been the source of his accumulated wealth. Since the signing of the prenuptial agreement, he has given his shareholding to his two children, apart from 100 shares which are likely to have a nominal value. They both work in the business and they now are equal shareholders. There has been no attempt, sensibly, for Mrs H to take proceedings under section 37 of the Matrimonial Causes Act to try and restore those shares to Mr H. I am invited to assume that he could without too much difficulty satisfy any order that I am likely to make in Mrs H's favour. So what then of the central allegation of anal rape made by Mrs H against Mr H? Mrs H and Mr H had previously been married to other people on four occasions making this the fifth marriage for both of them. Both of them have had children and grandchildren. They met through an online dating agency and within a relatively short time of meeting one another, perhaps a couple of months, their relationship became a sexual one. They agree that sex was an important part of their relationship practised by them regularly and frequently. They agree that they have had anal intercourse but disagree as to the frequency and their respective enthusiasm for it. They agree that 23 rd March 2014 was a Sunday when Mr H had spent a large part of the day pursuing his hobby of flying his light aircraft. In the evening, Mrs H was preparing an evening meal for both of them. As I have already said, they have each given numerous accounts of the events of that evening. Not all of those accounts have been entirely consistent. Where they have been consistent is in giving very different accounts to each other. Mrs H gave an account to the police in the early hours of the day following the alleged incident. She gave an account to the police which was recorded on DVD and played to the jury. Her earliest account in statement form was in a statement prepared by her first solicitors in April 2014. In paragraph 10 of that statement, she said this: "On 23 rd March 2014, Mr H returned home about 5.00pm. He was agitated and kept looking at his watch. I was in the kitchen cooking. He immediately asked me to open a bottle of wine, which I did, and by dinner time he had consumed the whole bottle. He wanted more wine with the meal, so I opened a second bottle. By 7.30pm we had finished dinner and he said, 'Right, sweetie, let's go up.' I went to clear the pots and he told me to leave them. Normally, we went to bed at 8.30 to 9.00pm. He insisted that I went up first which was a departure from what happened normally. Normally, he would go up first and I would make tea and biscuits for him. 11. I knew we were going upstairs for sex and that we would have sex. I got undressed and got into bed. Mr H then came up and undressed and got into bed. He began to nibble my neck and shoulder and arm. This was not unusual, but then this night he began to really bite me extremely hard. I had bruising to my arm. I told him he was hurting me and told him to stop but he continued. I tried pushing him away. He continued. By then I was crying. He then grabbed hold of my nipples and squeezed them really hard and turned them which was excruciatingly painful. I screamed. His hands were all over me. He was like an animal pawing. I told him that he was really hurting me. He then stuck his hand roughly between my legs. I put both my hands down to push him away and he simply threw my hands away. By then I was really sobbing. I looked into his face and became extremely scared. It was like he wasn't there. I'm a type 1 diabetic and I had recently been fitted within an insulin pump which was taped to my stomach with a needle going into me which delivers insulin. He was so rough and was ignoring my pleas to stop that I became fearful that he would dislodge the pump. I therefore turned on my side with my back towards him and drew my knees up to protect myself from the pump being pulled out. Whilst I lay on my side, the respondent anally raped me. Throughout this, I was crying and sobbing and saying, 'No' which he ignored. After he finished, I lay on my side crying and he asked me if I wanted to talk about it. I did not reply to him. I was still crying." At the criminal trial whilst being cross-examined, the proposition was put to her by defence counsel that there had been consensual anal intercourse. Mrs H's answer was, "No." She went on to say: "There was not any consensual anal sex, or any sex that night because he had caused me so much pain from first getting into bed that no consensual sex, anal or otherwise, was agreed that night. He... He raped... He raped me that night. It was not in any way consensual in any way." She was asked, "There was no indication by you that you did not consent at all," and she replied: "I would think that by saying 'No' and shaking and crying and saying 'no' was enough to show him that I was not in agreement." In her section 25 statement within these proceedings, so the most recent account before giving evidence in the witness box, she said this at paragraph 30: "Mr H came home and I was cooking dinner as I would every night. I poured Mr H a glass of wine which I did whenever he came home. He states that he did not drink heavily, but I attach at pages 23 to 49 exhibit SA1 a number of our receipts from during our relationship which show I would buy wine regularly as he had started drinking quite heavily following our marriage. He went to watch television and asked for another glass of wine. Before we started dinner he had drunk the whole bottle. We then ate dinner together and he told me to open another bottle of wine. After dinner, I was going to start washing up and he suggested that we go to bed as we often would after dinner. He says that I asked him who he wanted me to be and whether I should be Mary from the kitchen. This is categorically not true. I have never said that. I went upstairs before him and got undressed. He came up shortly after me and also got undressed. Ordinarily he would go up to bed first and I would bring him tea and biscuits. Once we were both in bed, he began nibbling my neck and shoulder but then began to bite really hard. I told him he was hurting me but he continued. I tried to push him away but I could not. I started to cry. He grabbed my nipples and twisted them very hard. He put his hand roughly between my legs. I tried to push him away again and he flung my hand away. I started to feel scared and panicky at that stage. I turned on my side primarily to protect the insulin pump that I had recently had fitted to my stomach. He then anally raped me. I have genuinely never experienced pain like it. I was crying and repeated for him to stop but he did not. I was petrified throughout the whole experience." Mr H throughout has denied the accusation made against him. He gave his most recent account in his section 25 statement and that begins partway through paragraph 19. He said this: "Mrs H was in the kitchen preparing dinner. She had a glass of white wine and poured a glass of red wine for me. Red wine was a particular favourite of mine and she had purchased it that day. Whilst she was preparing the meal, I started to fondle her and feel her breasts. Jokingly, she said that I should stop messing around with the kitchen staff and suggested we go upstairs after dinner. 20. We had dinner at about 6.00pm and I had a second glass of wine during the course of it. At about 6.45pm, I asked Mrs H whether she still wanted to go upstairs and she said that she did and she asked me who I wanted her to be. She said that I could have anybody except Sharon and I replied that I would like to have Mary from the kitchen. She then asked me whether I wanted Mary to wear anything special. I replied that only a pair of little black knickers would be fine and with that, Mrs H went upstairs. I followed about 15 minutes later at about 7.00pm. She was in bed. She lay on her back facing the door with the covers pulled over to just below her breasts. I got into bed and she turned towards me and we kissed and fondled each other for a little while. She then turned sideways on to me and I had my arms around her and was also fondling her breasts. I nibbled her neck and shoulder and arm, and she asked me to hurt her. I knew she liked to have her nipples squeezed because she had previously told me and although it was a little painful, it gave her much pleasure and therefore I squeezed her nipples. She took hold of my penis and began to masturbate herself by rubbing the end of my penis against her clitoris. We had intercourse and she then climaxed. At no point was Mrs H sobbing, crying, or complaining that I was hurting her. I asked her to pass me the bottle of lubricant which was in the bedside cabinet on her side of the bed in the second drawer down. This is the oil she had bought on the internet so as to provide lubrication for anal sex. She reached down and took the oil out of the bedside drawer on her side of the bed and handed it to me (it was impossible for me to reach the lubricant from my side of the bed). I then oiled myself and gave her back the lubricant and then entered her anally and climaxed. It was a consensual act and at no point did the applicant ask me to stop. Had the applicant indicated that she did not want to have anal sex at any point, I would have respected that wish completely." It goes without saying that there are only two people who truly know what happened that night. As they cannot agree, the task falls to me to do my best to decide what evidence I can rely on and to establish what is more likely than not to have happened. So who can I believe of Mrs H and Mr H? Which of them is more likely to have been giving me a truthful and reliable account? Both of them in the witness box faced a substantial assault on their honesty and the reliability of the evidence they were giving, not only about those matters but on all the matters over which the evidence ranged. Mr H was challenged about his financial disclosure: the prenuptial document; in his Form E1 in respect of the section 27 Matrimonial Causes Act proceedings; his Form E in these proceedings; and his section 25 statement where he summarised his financial position again. He was challenged about the way in which the value of his assets as described by him appeared to have reduced during the course of this litigation when he accepted that in reality there had been no significant change in the housing market where his house is situated, there had been no change in the value of his collection of old cars of a significant degree, and that a light aeroplane that had been sold during the course of the proceedings had realised the value he had originally put upon it. He could offer no satisfactory explanation as to why the figures had changed. That left open two possibilities. If his most recent figures were accurate then he had overstated his worth at the time of the prenuptial agreement or, if his figures were accurate as they appear in the prenuptial agreement, that he was diminishing their value for the purposes of this litigation. Plainly, the question of diminishing his asset values for the purposes of this litigation goes to the question of his honesty. The question of overstating the value of his wealth at the time of the prenuptial agreement might have relevance when I consider another issue namely the potential purchase of a home for this couple together after their marriage. The house in Bramhall that they lived in together during the course of the marriage had been Mr H's home for a number of years and had been the home he had shared with two of his previous wives. He was challenged about the honesty of his account of the events of 23 rd March 2014. He denied causing any injury to Mrs H and yet when she was medically examined, bruising was found to her left upper arm. The medical evidence that was presented to the criminal trial left open the possibility that that might have been caused by a bite although there were no specific bite marks. He was challenged over his reference to the use of a lubricant prior to anal sex, in particular, the specific anal intercourse product which was not found in the bedroom when the police carried out a scene of crime investigation. Then he was challenged about the absence of communication with Mrs H that evening. It was undoubtedly the case that following whatever happened in the bedroom, Mrs H left the house together with her dog and returned to the home that she had maintained after the marriage that was her rented home in Flixton where she had lived for eleven years prior to her marriage to Mr H. It was accepted that Mr H had not telephoned her either in the car or when she might have got home, or before he went to bed at which time she had not returned. That was, by their agreed account, the first time she had not been present at his home at night since they married, the point being that the absence of communication was because he had done something bad. There was a substantial challenge to Mrs H's honesty. It was suggested to her that she was and remains dishonest in her financial disclosure. Although she acknowledged she had for a number of years run a modest bookkeeping business, she had failed to disclose the full extent of that business, the true level of her earnings, and that the business had continued after March 2014 from which time she asserted that she was incapable of work. She was challenged about her assertion that she did not keep records of the work that she did. She maintained she did not keep copy invoices. She did not keep an account book for her own business of the type she kept for other small businesses. She was challenged about her admitted failure to file a tax return, any tax return for any year, despite earning income from a business, particularly when her role as a bookkeeper involved her preparing other people's accounts for submission to the authorities and, in particular, completing VAT returns. She was challenged about her receipt of benefits and her entitlement to benefits not least at the time when she was working, subsequent to March 2014 and in particular from December 2014 when she was the recipient of backdated maintenance payments from Mr H which, on the face of it, would have disentitled her to some or all of her means tested benefits. She was challenged about what she had said in her previous divorce proceedings. It was pointed out to her that many of the allegations relating to her earning capacity made in these proceedings were identical to the allegations and the factual matters which she raised within her earlier proceedings. Most importantly of all, her case in these proceedings was that due to her treatment at the hands of Mr H, she would never be able to work again. Her case in the previous divorce was summarised in this phrase, which appeared in her then Form E, "I do not believe I will work again." She was challenged about the frequency with which she and Mr H had engaged in anal intercourse. It was her evidence that there had been but three occasions of anal intercourse, one in an earlier phase of their relationship when Mr H had entered her anus by accident where they were engaging in vaginal sex where he was lying behind her. There had been a second occasion of anal intercourse after they had married prior to which she had purchased the anal intercourse lubricant on the internet. However, that episode had been both unpleasant and had caused her damage such that she bled profusely and had to seek emergency assistance from her doctor that same day so that she determined that no such activity would ever take place again. She told Mr H that and he threw away the lubricant. The third occasion was the occasion of anal rape on 23 rd March 2014. In the very first statement, she summarised the matter this way at paragraph 14: "It is not the first time the respondent has had any anal intercourse with me. The first time was on an earlier occasion in 2012. I made it clear I didn't like it and, in fact, I finished the relationship. Mr H begged to resume the relationship and I agreed and made it clear to him that I never wanted to have anal intercourse again. Following our marriage, Mr H began to seek to persuade me to have anal intercourse again. I refused on numerous occasions, but eventually in January I gave in. I found it a horrible experience and told him that I found it horrible. In fact, I needed to see the doctor because I thought he had damaged me. I told him I never ever wanted to do it again and he must not ask me again." She was directed to look at an email exchange that she had with Mr H in June 2013. The background to this was that the relationship between the two of them had not always gone smoothly and there had been occasions when their relationship had cooled and then been restored. In June, there was an occasion where Mr H had been at Mrs H's home in Flixton. She had invited him to leave and effectively ended their relationship. Following that, it appears likely to be several days later on 21 st June 2013, he wrote an email to her which included this message: "Once again, you began to explain to me that I should be actively seeking another lady more suited than you to both my needs and lifestyle. You have now done this on three previous occasions over the past twelve months. However, on this occasion, you took the decision to pack up my bits for me for me whilst I was in the bathroom. You then presented me with a plastic bag and wished me, 'Good hunting' before escorting me to the door. This time I have decided to take your advice." Some two and a half hours later on 21 st June 2013, Mrs H replied. She accepted in evidence that her reply was done in anger and was not as well crafted as she might have liked. After setting out a number of matters which clearly concerned her, which do not shed any light on matters that concern me, she said this: "You are a sexual deviant which has left me physically damaged due to anal sex, whilst I appreciate you have an erectile dysfunction which I have accommodated (I'm sure this is what your doctor friend is referring to when she said she could help you). I only went along with this to please you as I told you at the time I was unsure of this type of behaviour, I needed an Oscar not a Rada [sic] for my acting performance in bed." She was challenged on the basis that that passage was a reference throughout to anal intercourse and indicated that anal intercourse had been a much more frequent occurrence than she was acknowledging. In addition to those challenges, both parties were challenged as to consistency between evidence they had given in the Crown Court to evidence they gave to this court, cross referenced to their various statements. I was invited to conclude by Miss Harrison that Mrs H was not telling the truth, and by Mr Wagstaffe that Mr H was not telling the truth. There is merit in some of the points that each of them had made. What else might shed light on who is telling the truth? I need to refer first of all to the circumstances in which they made an arrangement to marry. I referred to the email of 21 st June 2013. A part of the email exchange that I have not read into this judgment related to Mr H' attendance at his church the following Sunday. As a result of that email exchange, he understood that his relationship with Mrs H was then at an end, but when he emerged from Sunday morning service some two days later he was met by a tearful Mrs H outside the church. He invited her to his home for a cup of tea, she accepted, and they discussed their relationship. They agree that each said they would forget the terms of the email exchange and that they wanted to start again. Mr H offered and did delete the email exchange from his computer although, in fact, it proved possible at a later date to retrieve it. It was either on that occasion or in a further discussion two days later that the question of getting married arose. Although they cannot agree on which occasion it was that the subject was raised, they do agree that it was Mrs H who proposed that they marry. Mr H agreed that they should marry but indicated right at the outset that there would need to be a prenuptial agreement to protect his wealth for the benefit of his children and grandchildren. Mrs H agreed. So the question arises, why would she propose marriage to a sexual deviant who had physically damaged her due to anal sex, something she was not prepared to put up with in the future? What else might shed some light on who is more likely to be telling the truth? Mrs H accepted that she had purchased on the internet the anal lubricant to which Mr H referred in his version of what happened on the evening of 23 rd March 2014. Her explanation was that it was bought during the marriage as a result of Mr H pestering for anal sex. Having used it for its intended purpose, she suffered damage, had profuse bleeding and consulted her doctor, and then threw it away. It was accepted that she kept it on her side of the bed in a drawer. Her purchase of that lubricant was not revealed to the police although of course the police, as I have indicated, did not find it and so would not otherwise know about it. What did she say to her general practitioner when she attended following what she says was the second act of anal intercourse? I must rely on the evidence given to the criminal court which was in two parts. Firstly there was the doctor's computer note which will have been entered either at the time of the interview with Mrs H or very shortly afterwards. The date was established as 4 th March 2014. Mrs H previously suggested that this incident occurred many weeks earlier. Her explanation was that she visited the doctor on the day of the incident when she was suffering from profuse bleeding. What the doctor's note read was as follows: "Painless rectal bleeding of Mrs H initially after defecation. Fresh blood not mixed with motion on wiping. After then, two further episodes after a shower when drying herself. No change in bowel habits. Examination of the patient of her rectum – no abnormalities detected. No blood. No masses. Suspected condition likely internal haemorrhoids. Reassure. Had a chat to patient. Anxious about bleed. Has had anal intercourse a few days ago." The doctor's statement to the police reads as follows: "On 4 th March 2014, [Mrs H] came to the Davyhulme Medical Centre with an episode of rectal bleeding. She told me she had had anal intercourse a few days prior to her visit here and she was a bit worried by the bleeding. I examined her bottom to see if there was any reason for the bleed and on examination I could not see any cause for concern or what may have caused the bleed. I did advise that it could have been internal haemorrhoids that may have caused this, but nothing looked of concern. I remember her being a little embarrassed about this, but her main aim was to make sure there was nothing more serious about the bleeding or that she had damaged anything. I printed a copy of my notes for this visit and have sent it to the officer." Mrs H's explanation for the disparity between her account and that of the doctor as to the extent of the bleeding and the timing of the visit relative to the episode of anal intercourse is that the doctor's record keeping was inaccurate. So which is more likely to be the more accurate account, that of Mrs H or that of the doctor? How does that help me overall with who might be telling the truth? I note that the evidence I have just read into this judgment from the doctor as given to the criminal trial was unchallenged evidence. Next, another matter of dispute between Mrs H and Mr H that might be relevant to my deliberations concerns the potential move to Flixton. Mrs H made plain to anyone who would listen, and that included Mr H, that she really wanted to live in Flixton where she had lived for most of her life. She told him that she was unhappy at the prospect of living in Bramhall. She had her bookkeeping business in Flixton with clients local to where she lived. Although Mr H was out at work working twelve hour days away from home, it was his understanding (as subsequently borne out by Mrs H's landline telephone records) that she spent a significant part of each day during the day at her home in Flixton which had been maintained for her with Mr H paying six month's rent before they married. She told the jury that she would have lived in a shed if she could have moved back to the Flixton area. Eventually, Mr H recognised that this was something important to Mrs H and that he needed to do something about it. He agreed that the house in Bramhall could be sold and that a house in Flixton could be purchased. He gave the task of sorting all of that out to Mrs H. The house in Bramhall went on the market and I am told initially there were parties interested. Within days Mrs H had found a house in Flixton that she deemed suitable for them to move to. I am not clear on the timings of this, but it is certainly the case that matters over the removal came to a head in the days immediately before 23 rd March 2014. The house in Flixton that was proposed to Mr H was to be had for some £600,000 complete with all its furnishing. When presented with the reality of a potential early move, Mr H reconsidered his position and told Mrs H that he was not prepared to buy another house until the house he owned in Bramhall had at least reached the stage of exchange of contracts. It is clear from the description of both of them that this was an unwelcome development to Mrs H. It is here that the possible overstatement of Mr H's wealth in his prenuptial agreement might have some significance. It is easy to see why Mrs H might be perturbed to find that her husband, who had declared his net worth at some £4 million a short while before, was now saying he could not afford to buy a house at £600,000 without first selling his existing house. It is Mr H's case that following those discussions and discussions of a cheaper house that Mrs H identified could be bought instead, that she was plainly unhappy and, my word not his, sulking. His case in the criminal trial was that the allegation of anal rape had been stage managed and that the failure by him to purchase the house proffered to him by Mrs H had caused her such upset that she had determined the marriage was over so that when she left his home on the evening of 23 rd March 2014 and telephoned her daughter in distress, as she undoubtedly did, that was all stage managed. His evidence before me was not put so strongly. He said that he was suspicious about her motives as he could not otherwise explain how something perfectly innocent had turned into such a serious allegation. Does the disappointment that Mrs H inevitably felt at the failure of her wealthy husband to meet her housing demands provide an explanation or at least a background for an explanation as to what subsequently happened? Next I must look at the events immediately after the alleged rape when Mrs H left Bramhall to go back to her home in Flixton. During the course of the journey she telephoned her daughter. Her daughter recognised her distress. The allegation was one of rape. Her daughter was concerned about her mother's safety and telephoned the police. All of that was agreed evidence at the criminal trial. A male police officer attended in the early hours of the morning. He recognised the sensitivity of matters and called for a female officer to attend. That then was the first occasion when Mrs H gave an account of what she said had happened. The following morning there were three telephone calls made by Mrs H to the Greater Manchester Police. One of those, she says, was a phone call in which she told the police that she did not want to have her husband prosecuted. The second was to find out what had happened to her husband. The third, she said, was a request for permission to go back to the house in Bramhall to collect her clothes. The Greater Manchester Police have no record of that third conversation. Undoubtedly, she did return to the home. It appears that she went with a friend. It would be surprising if the Greater Manchester Police had given Mrs H encouragement to visit the scene of a crime where she was the alleged victim, but she undoubtedly went. Her bank records appear to show that 24 th March, the following day and a Monday, was a day in which Mrs H went shopping and bought lottery tickets. Mrs H says no, that was not the case. She gave a convoluted explanation of how she and her daughter had historically intermingled their finances. Income earned by her daughter, who herself is a bookkeeper, would be paid into Mrs H's account and may indeed have been invoiced on Mrs H's invoices. Her daughter had a card for Mrs H's account which allowed her daughter free access to the funds in that account so that any shopping that was done on 24 th March would have been her daughter shopping. She said the way they kept a tally between them of who spent what and who owed each other what was something only a mother and daughter could do. Does any of that shed light on the events of the night before? Then what about Mrs H's financial claims against Mr H? In November 2014 in front of me, she attended with counsel, seeking financial support from Mr H. She was successful. In January 2015 at the criminal trial, she said in terms that she wanted nothing from him. In these proceedings, her evidence was that what she wanted was justice and that even a payment of £10 million would not be sufficient. So do those apparently inconsistent positions shed any light on the truth of what happened in their bedroom on 23 rd March 2014? I highlight all of those matters I have recounted to say they are matters that I regard as of potential importance, but there are other matters that I have not mentioned and that have also affected my thinking. I am left with this impression, not least having heard Mrs H and Mr H give evidence and watch them during the course of the evidence of the other as they sat at the back of court: I am quite satisfied that, by now, each has convinced themselves of the truth of every detail they gave in evidence. They will have been through this in their minds hundreds of times if not more. They cannot both be right. Indeed, it may be the case that neither of them is right. Mr Wagstaffe addressed me at a little length about the criminal definition of rape. Of course, this is a fact finding exercise and it may or may not be appropriate for me to put a criminal label on the facts as I find them to be. In any event, it seems to me likely that the truth is rather more nuanced than the extreme positions that I have set out in the early part of this judgment that have come from their respective evidence. My conclusions are these. Sex was a very important part of their relationship. They engaged in sexual activity frequently and by that I mean most days of the week when they were married. Anal intercourse featured as part of their sex life together. Mrs H was not necessarily an enthusiastic participant in anal intercourse, but I am satisfied from time to time consented to it. On 23 rd March 2014, they had both drunk alcohol but not to the extent suggested by Mrs H. Prior to eating their meal, they made an arrangement between themselves that after they had eaten they would go upstairs to bed and engage in sexual activity. That is what they did. The timing of when they went upstairs and when they finished will never be known with precision, but I am clear based on their joint estimates of when they went upstairs and the timing of the phone call to Mrs H's daughter at 9.30 in the evening that their sexual activity was not something over in moments, but occupied at least an hour. I am satisfied that that activity included both vaginal intercourse or some activity involving Mrs H's vagina before there was an act of anal intercourse. I do not accept her account that Mr H behaved like an animal and attacked her in a violent way and that she had to fight him off. He was entitled, in my judgment, to assume that they would engage in both vaginal and anal intercourse unless she made plain or said otherwise. I do not know what lubricant was used, but it is plain on their agreed account that lubricant was used before Mr H entered her anally as Mrs H has referred in her evidence to how easily he entered. I did not accept her description of that being one of the most painful experiences of her life. When I look at the matters generally, I am driven to the conclusion that Mrs H has not been truthful with the court and of particular relevance for the financial remedy proceedings, I am quite satisfied I have not been given a truthful account of her business, of her earnings and of her record keeping. She described herself as a hoarder. She described having a home and a garage full of documents. She described having regular clients for whom she did the books who obviously had confidence in her abilities as a bookkeeper. I find it inconceivable that she would fail to keep records of the money she earned, that she would fail to keep copies of her invoices to her clients, and that she would not have known that, as someone running a business, she had a duty to declare her business to the tax authorities. Unhappily, she is prone to exaggerating and dealing with matters in temper. Her email of 21 st June 2013 to which I have already referred is a clear example. It concludes with this phrase: "You are truly an evil man and I have suffered greatly by your actions." Within four days of writing that sentence she was proposing that she married the man she was referring to. I draw the inference that the failure by Mr H to purchase a house in Flixton was a bitter blow to Mrs H, so much so that she began to have doubts about her marriage; why would her wealthy husband suddenly get cold feet about doing something to please her that he could well afford? I cannot know what else may have happened in the bedroom on 23 rd March 2014. Something did. Mr H, I am satisfied, knew that he had upset Mrs H. She was undoubtedly upset and rang her daughter in distress when driving home. Whether that distress was altogether genuine I cannot say. I am satisfied that she had second thoughts about a possible prosecution of her husband for an allegation of rape and that is why she phoned the police seeking to withdraw. I am not at all persuaded that that was because she felt she could not go through with it. Although my task is different from that of the jury in the criminal trial, having read the transcript I am not in the least surprised that they acquitted. So, as far as the divorce proceedings are concerned, I am going to dismiss the petition and the case will proceed on the basis of the cross petition. As far as the financial remedy proceedings are concerned, I must next move on to consider where my findings play into the section 25 exercise in its two parts: an assessment of what there is and the distributive phase. I am going to assume that Mr H will continue working for as long as he chooses. I have no reason to think that, for as long as he lives, he will not have a valuable contribution to make to the family business which will reward him with a salary. I will assume that if I make an order for capital provision for Mrs H that he could pay. What then of Mrs H's financial circumstances? Following her divorce from her previous husband, when she said she would be unlikely to work again, she re-established her bookkeeping business. Although I am satisfied I have not been given full, frank, and clear disclosure of her finances, I am satisfied that she was earning no less than £1,500 per month from that business during the course of her relationship with Mr H, both before their marriage and during it. It is perhaps the case, though there is no evidence to say this, that her business was not as active once they had married. Had she not married Mr H, she would have remained in her home in Flixton in rented accommodation for the foreseeable future. She would have had income from her bookkeeping business for as long as she continued to work in it. Thereafter, she would be dependent upon her old age pension. What are her needs? Her needs are exactly the same as they were prior to her marriage. Prior to her marriage she lived by herself. During her marriage, she was supported by Mr H in providing her with a home to live in and maintaining her home in Flixton, and providing her with housekeeping to help look after them both. As far as their respective needs for a home are concerned, I will assume that Mr H from his income will be able to afford whatever accommodation he needs. Mrs H maintains her rented home in Flixton though she told me that there was a suggestion that her landlord may sell. That has been a risk that she has borne throughout her time in that property. It is a private rented home. Mr H was able to point out that her daughter owns the house two doors away that she rents out to a tenant that might provide an alternative for Mrs H. Mr Wagstaffe's submission was that Mrs H needs to be accommodated in owner occupied property and had the marriage subsisted, that would have been her future and that that should be the outcome of this case. His fall back position is that if I am not satisfied that that is an appropriate outcome, then a sum of money should be made available by Mr H of approximately £220,000 to be spent on a house and Mrs H given a life tenancy, with the value of that house reverting to Mr H or his estate on Mrs H's eventual demise. Miss Harrison on behalf of Mr H contended that I should return Mrs H to the rented sector where she had been and where she remains, and where in truth her future is adequately provided for. Mr H' position in evidence was a little more sympathetic. He would not want to see Mrs H in a state of distress if he was in a position to alleviate that distress. He recognised that he had had feelings for her, feelings which appear to survive the allegation, the criminal trial, and these proceedings. What should be the income position? Mr Wagstaffe submitted that Mrs H had a need for income for life and on that basis he proposed a clean break based on a Duxbury calculation. Miss Harrison contended that Mrs H's needs would be adequately met by her entitlement to her old age pension and any other means tested benefits for which she qualified. So what then of the prenuptial agreement? As I have already said, it is accepted that the terms of that prenuptial agreement are such as to result in Mrs H receiving nothing in the event that I decide that she should be held to the terms of it. This was not an agreement that was entered into at the last minute by parties who had no real notion of what it meant. Both Mr H and Mrs H had previously experienced marriage and divorce. They are both of mature years. Mr H raised the prospect of a prenuptial agreement the moment marriage was suggested by Mrs H. She knew the object of a prenuptial agreement would be to protect his assets for the benefit of his children and grandchildren. She knew that by its terms she would get nothing. She had the benefit of expert legal advice. Indeed, she was advised by the very same firm of solicitors who have represented her in these proceedings. They advised her not to sign it. She took the decision, as she was perfectly entitled to, to ignore their advice and signed it nonetheless. When she gave evidence to the jury in the criminal trial, she accepted she would be bound by its terms and said that she was seeking nothing financially from Mr H. I have been referred by both counsel to Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 . In particular, I was referred to two paragraphs which appear under the subheading, "Future circumstances": "80. Where the ante-nuptial agreement attempts to address the contingencies, unknown and often unforeseen, of the couple's future relationship there is more scope for what happens to them over the years to make it unfair to hold them to their agreement. The circumstances of the parties often change over time in ways or to an extent which either cannot be or simply was not envisaged. The longer the marriage has lasted, the more likely it is that this will be the case. Once again we quote from the judgment of Rix LJ at para 73: 'I have in mind (and in this respect there is no real difference between an agreement made just before or just after a marriage) that a pre-nuptial agreement is intended to look forward over the whole period of a marriage to the possibility of its ultimate failure and divorce: and thus it is potentially a longer lasting agreement than almost any other (apart from a lease, and those are becoming shorter and subject to optional break clauses). Over the potential many decades of a marriage it is impossible to cater for the myriad different circumstances which may await its parties. Thorpe LJ has mentioned the very relevant case of a second marriage between mature adults perhaps each with children of their own by their first marriages. However, equally or more typical will be the marriage of young persons, perhaps not yet adults, for whom the future is an entirely open book. If in such a case a pre-nuptial agreement should provide for no recovery by each spouse from the other in the event of divorce, and the marriage should see the formation of a fortune which each spouse had played an equal role in their different ways in creating, but the fortune was in the hands for the most part of one spouse rather than the other, would it be right to give the same weight to their early agreement as in another perhaps very different example?' The answer to this question is, in the individual case, likely to be 'no'." 81. Of the three strands identified in White v White and Miller v Miller , it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned." I am dealing with a marriage that subsisted for twelve weeks. I am dealing with a prenuptial agreement that was designed for a specific purpose understood by both as to its meaning and signed without demur. On the face of it, it seems to me that this is a paradigm case for upholding such an agreement. The contingencies identified by the Supreme Court had no opportunity to arise in this case. Changes in the parties' lives had no opportunity to arise. Even if I bring into account a period of cohabitation from September 2013 to take the full length of the marriage to some 24 or so weeks, my view would remain exactly the same. Nothing had changed for these parties that was not in contemplation at the signing of the prenuptial agreement. Mr Wagstaffe says that that is all very well, but the effect of this prenuptial agreement is to throw Mrs H on the mercy of the state so that she would be supported by benefits, in other words by the tax payer, when she has a husband who is well able to provide for her financially. He referred me to two now relatively elderly cases: Hyman v Hyman [1929] AC 601 at 628-629] and Minton v Minton [1979] AC 593, and sought to derive two principles that he said were relevant to my considerations. Firstly, that Mr H's obligations arising from marriage could only be met by supporting Mrs H and, secondly, that the court would look to the parties to support themselves rather than have them supported by the state. The effect of the application of that approach, the obligations created by the marriage itself and the attempt to avoid dependence on the state, should mean Mrs H's needs should be met by Mr H irrespective of the prenuptial agreement and its terms and what would otherwise be their effect. Miss Harrison sought to persuade me that those two authorities were impliedly overruled by the Supreme Court in the Radmacher case. They were not mentioned. The principles alluded to by Mr Wagstaffe were not discussed by the Supreme Court. I am not satisfied that Miss Harrison's approach is an accurate statement of the law. In my judgment, it is relevant that there are obligations created by the marriage itself, but the parties are entitled to regulate those obligations and in this case have done so by their agreement. In many cases it may be appropriate for the court to impose long term obligations on parties to a marriage to avoid the economically weaker party being thrown on the mercy of the state. I do not accept that the facts of this case inevitably lead to that conclusion but it is something I must weigh in the balance. It seems to me that given the parties' circumstances and their ages and everything I know about them, that the prenuptial agreement has a magnetic place in my consideration of the distribution of their assets. Having identified that, I must still stand back and pose the question: will the outcome be fair if they are held to the terms of a prenuptial agreement? Mr Wagstaffe's argument was that if I found as a fact that the marriage was ended because of a brutal act of anal rape, that that would be sufficient to undermine a prenuptial agreement and cause me to consider fairness in a different light. He may be right. That is now an argument for another case. Sadly, this marriage broke down before it had ever got going. The prenuptial agreement agreed by this couple was there to serve a purpose. I see absolutely no reason why it should not serve its purpose. Mr Wagstaffe goes on and argues that, in any event, his client is left with a legal bill of some £50,000 that she simply cannot pay. Miss Harrison relies on the very self same point by saying that the £50,000 represents an overspend on the provision I made for the parties that they should spend equal amounts on legal representation in the latter stages of this case. However, the effect of my order in December 2015 to provide that Mr H should provide £1.00 for £1.00 for everything he spent means that Mr Wagstaffe and his team have on behalf of their client incurred an extra £50,000-worth of legal expenses for which there is no provision. We do not yet have a system in financial remedy proceedings of costs budgeting. Once that process is established in the civil jurisdiction and made to work fairly, I anticipate there will be pressure to introduce it into family proceedings, if not the precise same system, something similar. But I was not in December setting a budget. I was making provision to allow the parties to have equality of arms. The effect of my order was that those in Mr Wagstaffe's team were taking a risk if they incurred costs above and beyond that which provision had been made for. Again, I must stand back from this. All of the financial consequences of the breakdown of this marriage have been met by Mr H. Pursuant to the order I made under section 27 of the Matrimonial Causes Act, he has paid almost two years' worth of maintenance at £1,500 per month. He paid the costs of that litigation for both parties. He has so far paid the costs of this litigation for both parties. He had to pay in very large measure for his own defence in the criminal proceedings. He is out of pocket in a total sum approaching £300,000. One way of asking the question posed by Mr Wagstaffe's position is to ask whether he should have to pay any more. I am not persuaded he should. My conclusion is that a fair outcome of these proceedings has already been achieved. If it is unfair, it is unfair to Mr H but, as between him and his wife, he is the only one able to bear that financial burden. The prenuptial agreement should bite. There should be no further provision for Mrs H. Potentially, Mr H has a costs application. He made an open offer which, had it been accepted, would have been to his wife's undoubted advantage. She did not accept it. She pursued the case in her quest for "justice". She was singularly ill-advised to do so, but she does not have the funds to repay anything to Mr H. Whilst Miss Harrison has not yet made any application, I can anticipate and tell her it would be pointless. [Judgment ends] BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII