Well, after the last two days of a three day final hearing last week I can finally announce it is all over.
This is a long story, so I don’t expect many people to have the patience to read it all, but if anyone does, especially if they are embroiled in a case with a DIY marital agreement, I hope they find it interesting.
In 2013, a while after our marriage ended, my ex and I made an agreement between ourselves on how we should split our assets. There wasn’t enough money to rehouse us both, and as I was a mature student and he was a pensioner neither of us could raise a mortgage.
As I had been the (almost) sole earner throughout the 20 year marriage, when a family member kindly offered to buy a house he could live in for life with no rent payable, we agreed that I would keep the fmh and he would keep his pensions and move out. I spent all my savings paying for removals and refurbishing the house. He saw a solicitor for advice, then he demanded we have the agreement in writing so we wrote it up ourselves.
He changed his mind a few months later – I saw a solicitor for some advice and was told our agreement wouldn’t stick, and I should sell my house, move into rented, roll over and give him half and give him a big chunk of pension too.
I started to do some legal research and came across case law that seemed appropriate. Radmacher vs Granatino in the supreme court had changed the weight given to marital agreements – and determined that both pre nuptial and post nuptial agreements should, in certain circumstances, and providing the circumstances surrounding their making were not tainted, be upheld.
I couldn’t afford to actually instruct a solicitor (by then I’d graduated and was unable to find a job) but figured if I was going to lose half anyway I may as well not pay legal costs too.
I wrote a stiff letter to his solicitor explaining that we had an agreement, and waited patiently for a response that didn’t come.
Instead, over a year after that letter I received the dreaded Form A to start court proceedings.
As an aside, the first thing I did was to issue a D11 application to move the hearing from near to his house, to a court half way between us (we are at different ends of the country). This was heard by telephone and was my first ‘win’.
I had researched enough to find out that I had to mention the agreement at every opportunity. It was attached to my form E and mentioned within it. It was the main paragraph of my statement of issues. I asked the judge at first appointment for an order that we both file witness statements surrounding the making of the agreement.
At FDR I again emphasised the agreement. I offered an alternative without prejudice offer of most of my pension if he wanted an alternative to the agreement (the law had by then changed so he could cash it in). The judge had read the witness statement and other documents and gave ex a ‘strong indication’ that the agreement was likely to be upheld, and he should seriously consider my offer.
He didn't. Moving on, and final hearing was scheduled for one day in January 2016. By then I was fully conversant with the case law surrounding agreements, and gave a strong case to court. This time I was up against a barrister. Judge said she could only look at ‘stage one’ – the circumstances surrounding the agreement – in the one day that had been allocated.
Six weeks later we were back in court to hear the judgment – and she had decided that her preliminary view was that the agreement should not suffer reduced weight and was fair given the circumstances at the time. However, we hadn’t yet considered section 25 factors.
As the court couldn’t order that a third party issue him a lease (the terms of which had already been agreed) we agreed to go away, get that sorted, and come back with a consent order.
Guess what – he wouldn’t sign the lease.
A year went by, during which time he failed to attend two directions hearings (which were then vacated), refused to negotiate, and finally he upset my family member (the landlord) so much that he was evicted but he managed to nab a council flat.
Back we trooped to court. He was now demanding half of everything again (and at the current valuation). The directions hearing laid down some orders for more documents to be filed and a two day final hearing was scheduled.
I made an open offer to avoid the hearing of several tens of thousands of pounds of pension share, he counter offered about 50% more which I very nearly accepted. However by then it was less than one week to the hearing so I decided to let the judge decide.
The hearing finally took place this week. Ex admitted under oath he had failed to provide full disclosure, and had lied on his section 25 statement.
Again I was up against a barrister and there was a good amount of legal argument. The case turned mainly on whether he had been left in a ‘predicament of real need’ and what the definition of this was.
My final offer to court was that he should get nothing unless the court found he was in a predicament of real need, in which case I’d pay off his post [url=Resources/Library/Cohabitation-and-Separation_s33_m1852.html ]separation[/url] debts (about £15k pension share).
The judge found he’d been vindictive and unreasonable bringing the case and dragging it on for so long, and awarded him precisely nothing.
I was given the opportunity to make an application for costs, as the court had found there had been litigation misconduct on his side. I said I’d bear my own though, as he had not had an award.
Well done! What a stressful journey but good for you for sticking with it.
It is good to know that the judge recognised his behaviour and dealt with it appropriately. Should serve as a warning for all exes who get greedy.
Please do stay around to share your wisdom and experience.