DJ v BJ - Judgment

¶ ```html <table> <tr> <td>IN THE GRAND COURT OF THE CAYMAN ISLANDS</td> </tr> <tr> <td>FAMILY DIVISION</td> </tr> <tr> <td>CAUSE NO.FAM 66 OF 2014</td> </tr> <tr> <td>BETWEEN:</td> <td>DJ</td> <td>PETITIONER</td> </tr> <tr> <td>AND:</td> <td>BJ</td> <td>RESPONDENT</td> </tr> <tr> <td>Appearances:</td> <td>Mr. Nicholas Yates Q.C. instructed by Mr. Andrew</td> </tr> <tr> <td>Woodcock of Hampson & Co for the Petitioner</td> </tr> <tr> <td>Mr. Guy Dilliway-Parry of Priestleys for the</td> </tr> <tr> <td>Respondent</td> </tr> <tr> <td>Before:</td> <td>The Hon. Justice Cherryl Richards Q.C.</td> </tr> <tr> <td>Hearing:</td> <td>4th and 5th June 2019</td> </tr> <tr> <td>Further Submissions</td> <td>11th and 12th June 2019</td> </tr> <tr> <td>Draft Judgment Circulated:</td> <td>29th July 2019</td> </tr> <tr> <td>HEADNOTE</td> </tr> <tr> <td>Family Law-Final Ancillaries-Sharing of Matrimonial Assets， Construction</td> </tr> <tr> <td>and Application of Pre-nuptial Agreement</td> </tr> <tr> <td>JUDGMENT</td> </tr> </table> ```
Introduction

¶ [1] This is a final ancillary hearing following the filing of a Petition of divorce by the Petitioner wife (“the wife”) on the 15th April 2014. The wife, and the Respondent husband (“the husband”) were married on the 17th February 2012, so that the marriage lasted a little over two years. At the time of the marriage, the parties executed a pre-nuptial agreement (“the Agreement”) which is dated 16th February 2012. There is a fundamental issue between the parties as to the interpretation of this Agreement. This is, as to whether the terms of the Agreement require that assets acquired during the marriage are to be assessed and shared as at the date of the separation of the parties which was on the 28th March 2014 or as at the date of dissolution of the marriage.

¶ [2] At the time of the marriage the Petitioner was pregnant with the couple’s only child, a son J., who was born on the 4th July 2012. He is now seven years old. This was the second child for the wife and the husband’s first. He has since had a second child, D. now 3 months old, and is engaged to be married.

¶ [3] J. was diagnosed with Down syndrome shortly after his birth and is thus a child with special needs. Multiple reports have been provided by the parties in the course of their Affidavit evidence and there is very little dispute between them on this aspect of the case. As a result of the diagnosis, J. will have global developmental delays and requires additional and specialist care to foster and support his development and growth throughout his life. J.’s present therapy needs include speech and language therapy to develop his language skills. He also requires occupational therapy to develop his motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. 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He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires occupational therapy to develop his fine motor skills. He requires physiotherapy to develop his gross motor skills. He requires speech and language therapy to develop his speech and language skills. He requires
which is currently twice weekly to address his cognitive and gross motor skills, self-care and social skills. Some of his needs cannot be met on Island and he requires twice yearly travel off Island to a specialist treatment centre in the United States. He will continue to require intervention to support skills towards independence such as meal preparation, topography navigation, money management and job skills\footnote{Page 634 of Trial Bundle - Therapist letter of 4th April 2019.}. One of his doctors noted that J’s treatment plan and progression are not expected to be linear. The reports also indicate that his skills will ebb and flow, dependent on his routine and structure, consistencies in behavioral interventions and his medical health.\footnote{On the 3rd June 2016 in a letter to the Court, Occupational Therapist, Dr. Mona Kazemi – page 207 of Trial Bundle} He has been progressing well and there have been positive outcomes from his treatments.

¶ [4] Additionally, at the time of his birth J was also diagnosed with a heart murmur and a transient leukemoid gene. This latter is described as a condition which pre-disposes him to leukemia at a higher rate than the typical child. Following several tests, his hearing also requires to be monitored over time.

¶ [5] J is currently in his first year at a local school. By arrangement with the school, the school provides a special aide to be with him throughout the school day and the cost of this is borne by the parents.

¶ [6] Prior to the hearing, the only area of disagreement between the parties as to J’s treatment needs was as to whether he also requires Applied Behaviour Analytic Intervention for children with developmental delays (“ABA Therapy”). This is described as the only therapy to add compliance is effective to ensure the effectiveness of other therapies. Issues on the need for ABA therapy are being centred on the evidence of short term and long term benefits of the therapy. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019
```markdown The husband now agrees that J is to have this additional treatment and he has agreed to meet the cost of it. Both parties are professionals, who married later in life. The wife is now 46 years old. The husband is 47 years old. The wife is a certified public accountant and since 2011 is also an attorney by profession. The husband is a certified public accountant. At the time of the marriage in 2012, the wife was employed as an attorney at a law firm and the husband was employed as a partner in an Accounting Firm. He had commenced employment with the Accounting Firm in October 1997 and was made a partner in July 2010 prior to the marriage. Following J’s birth, the wife took a short leave of absence from work. After a return to paid employment, she determined to start her own companies in order to allow her to be more present in J’s life, given the level of attention which he requires. Since November 2016, she has been self-employed in her own law Firm while operating a second sister company which provides corporate services. The wife is the primary caregiver for J, who resides with her for most of each month. He resides with the husband from Friday evening to Sunday evening of every other weekend. It is the wife who takes J to his various appointments and has endeavored to find the best treatments, facilities and specialists for his care. The husband has provided financial support for J including payments for his various treatments and extactivities sucriding and swimming. Va racurricular h as horsebarious orders ```
Interim Maintenance Orders On the 23rd July 2014, by order of the Hon. Chief Justice, the husband was ordered to pay interim maintenance to include $4,465.00 to meet the monthly special needs costs for J, in addition to any other costs which may arise, $3,700.00 to assist the wife to establish a second home, $4,000.00 for the first month’s rent on the wife’s new home and a further sum of $1,135.00 for the purchase of essential items. On the 4th September 2015, by order of Williams J. made pursuant to the wife’s Summons of May 2015 seeking clarification of the July 2014 Order, the Order of the Hon. Chief Justice was varied to the effect that the husband was required to pay all the costs for therapy for J, interim child maintenance of $7,182.00 per month and arrears accrued under the July order. He was also to make disclosure of certain items and pay 50% of the Petitioner’s costs. On 21st October 2015, the husband sought leave to appeal the Costs Order, which leave was refused on the 30th October 2015. By summons dated 23rd November 2017, the wife sought an increase in interim maintenance on the basis that the passage of time and changes in their living arrangements made such a review necessary. On the 14th December 2017 by order of Gunn J. (Actg.), the order of Williams J. was varied to the extent that the interim maintenance pending suit was increased by CI $495.00 to $7,677.00 per month. The Court found that the wife’s custody of rent and travel expenses had improved since that she spent 75% of the conditions had been met. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 5 of 94
The Court also gave directions for disclosure which are referenced in more detail below. Thus between July 2014 and December 2017, the husband paid CI $86,184.00 per annum in maintenance for J, in addition to the costs of his specialist treatments. The position now is that the husband pays interim maintenance of CI$7,677.00 per month or $92,124.00 per annum, as well as the costs for special needs/care required for J, which are now in the region of $5,000 per month or $60,000.00 per annum. ## The Marriage The parties first met in 2004 - some eight years before the marriage. There is disagreement between them as to the level of consistency of the relationship. The wife says that they began what she describes as a serious and exclusive relationship and initially resided in a condominium which she owned. The husband did not then own property. She says that they separated on two occasions during this eight-year period but reconciled. At the time of the husband's purchasing his first home in 2007, she assisted him with a loan for closing costs which he has since repaid. She describes herself as having made many sacrifices for him during their relationship including having to sell her shares in a company because of conflicts with his work. She says also that she supported him during his long nights of work and provided emotional support in the years he was passed over for partnership. The marriage had a relationship of three-marital and extended duration of the relationship. The wife says that the relationship was volatile and says that she had a volatile relationship during which they separated for extended periods, one being for more than a year from autumn 2009 through to the end of 2010. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 6 of 94
They did remain in contact but only because they had mutual friends. He points out that they were not even together when he became a partner in his Firm. During the eight-year period, he says that the wife had other serious relationships with other people, as did he. He does not consider that she made sacrifices. He accepts that he did request her to sell her shares because of work conflict but contends that there were many other similar stocks which she could have invested in but did not, and instead she spent the money. As best as can be determined from the evidence of both parties, and eliminating the two periods of separation, it appears that they were together for a non-continuous period or at least five years prior to their marriage. They were together for a continuous period of two years just prior to the marriage. Both agree that following their reconciliation in 2010, they decided to get married and have children. The wife says that the decision was primarily driven by the husband who wanted to have a child of his own. They planned to have three children. Following their marriage, the couple resided in a three-bedroom apartment in Prospect, George Town which had been owned by the husband from 2007. He continued to pay the mortgage payments and maintenance, utility and upkeep costs of the home. The home was valued at approximately CI$365,000 in September 2016 with an outstanding mortgage of CI$141,115.56 as of February 2019. In March 2012, they put down a deposit on a piece of land at Clipper Bay along the Seven Mile Corridor, where they intended to build a family home. Both parties recount early difficulties and disagreements in the marriage. Each attributes these to different factors. The wife refers to the added strain of the
```html <table> <tr> <td>1</td> <td>responsibility to care for J., given his special circumstances and the husband’s inability</td> </tr> <tr> <td>2</td> <td>to deal with the reality of this. She says that he became depressed and expressed</td> </tr> <tr> <td>3</td> <td>disappointment that he would never witness his son getting married or graduating from</td> </tr> <tr> <td>4</td> <td>college. She is of the view that the husband was deeply embarrassed by the condition</td> </tr> <tr> <td>5</td> <td>of the child and that he has gone to great lengths to keep this a secret from other people.</td> </tr> <tr> <td>6</td> <td>She says that while it had been initially agreed between them that she would give up</td> </tr> <tr> <td>7</td> <td>her career and stay home for an extended period to take care of J., after a month the</td> </tr> <tr> <td>8</td> <td>husband wanted her to return to work. Additionally she attests to losing trust in the</td> </tr> <tr> <td>9</td> <td>honesty of the husband over time. Attempts at counselling failed. Matters came to</td> </tr> <tr> <td>10</td> <td>breaking point when the wife received an unconfirmed report of her husband’s alleged</td> </tr> <tr> <td>11</td> <td>unfaithful behaviour and she moved out of the matrimonial home on 28th March 2014.</td> </tr> <tr> <td>12</td> <td>19.</td> <td>For his part, the husband refers to financial matters and the wife bringing her adult</td> </tr> <tr> <td>13</td> <td>daughter to live in the small home with them on a permanent basis shortly after they</td> </tr> <tr> <td>14</td> <td>were married. It is the husband’s position as set out in his Affidavit of 24th April 2014,</td> </tr> <tr> <td>15</td> <td>that prior to the marriage there were several heated arguments between them as the</td> </tr> <tr> <td>16</td> <td>wife wanted to know all about his financial affairs. There was dispute about certain</td> </tr> <tr> <td>17</td> <td>terms that were to be included in the Agreement and as a result of an impasse, the</td> </tr> <tr> <td>18</td> <td>wedding which was initially set for 1st January 2012 had to be cancelled. Once the</td> </tr> <tr> <td>19</td> <td>wedding was called off, he says that the wife made it clear to him that the pregnancy</td> </tr> <tr> <td>20</td> <td>would have to be terminated as she did not wish to have another child out of wedlock.</td> </tr> <tr> <td>21</td> <td>He pleaded with her not to terminate the pregnancy and in an effort, he says, to meet</td> </tr> <tr> <td>22</td> <td>the unborn child</td> </tr> <tr> <td>23</td> <td>needs of the</td> </tr> <tr> <td>24</td> <td>ma</td> </tr> <tr> <td>25</td> <td>event</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 8 of 94 ```
```markdown # Sequence of Events and Delay ## 22. The matter came before me for hearing on the 3rd June 2019, having continued unresolved for some five years. It may therefore be helpful to set out in some detail the sequence of events. This even more so given the fact that the delay has had a significant impact on the import of the Agreement, and that each side blames the other for some portion of the delay. ## 23. In response to the Petition for divorce, the husband filed an answer and cross petition on the 30th April 2014 discharging his allegations as to his behaviour. A costs order was made against him in September 2015. The husband sought to appeal following the grant of leave to do so by Williams J., on the 2nd June 2016, and was ordered proved on the 1st of December 2016. ```
```html <table> <tr> <td>1</td> <td>24.</td> <td>In addition to the summonses for interim maintenance orders as detailed above, much</td> </tr> <tr> <td>2</td> <td>of the intervening period has been taken up with various requests for disclosure and</td> </tr> <tr> <td>3</td> <td>responses thereto. The husband changed attorneys once and the wife has had three</td> </tr> <tr> <td>4</td> <td>changes of attorneys.</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>25.</td> <td>The wife says that the husband has delayed matters significantly by filing the cross</td> </tr> <tr> <td>7</td> <td>petition and that there have been three adverse cost orders made against him, one of</td> </tr> <tr> <td>8</td> <td>which was in relation to disclosure. The husband says that it is the wife, particularly</td> </tr> <tr> <td>9</td> <td>in the latter half of the five-year period, who has delayed matters by failing to attend</td> </tr> <tr> <td>10</td> <td>at his Firm in order to examine certain documents and by the making of repeated</td> </tr> <tr> <td>11</td> <td>requests for disclosure.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>26.</td> <td>The latter issue arose because the husband in his list of separate assets attached as a</td> </tr> <tr> <td>14</td> <td>schedule to the Agreement identified “partnership interest” in his Firm as a separate</td> </tr> <tr> <td>15</td> <td>asset and described this as “Ownership percentage as a Partner/owner of firm.” As it</td> </tr> <tr> <td>16</td> <td>turned out, this description was erroneous, but it led to much correspondence between</td> </tr> <tr> <td>17</td> <td>the parties. In his Affidavit of 9th October 2015, the husband explained that he has</td> </tr> <tr> <td>18</td> <td>never had a copy of a partnership deed from his Firm. What he does have is a joining</td> </tr> <tr> <td>19</td> <td>agreement but, as this document is confidential, it required the approval of seniors of</td> </tr> <tr> <td>20</td> <td>the Firm before it could be released. He said then that 80% of his earnings is</td> </tr> <tr> <td>21</td> <td>distributed monthly and 20% is retained to the 30th September of the following year</td> </tr> <tr> <td>22</td> <td>when all the earnings are tabulated.</td> </tr> <tr> <td>23</td> <td>25</td> <td>with the wife st</td> <td>important is</td> <td>ticulars m the</td> <td>and had</td> </tr> <tr> <td>24</td> <td>Thous requests</td> <td>nd better iad</td> <td>ther the h</td> </tr> <tr> <td>ere were vari for furthe</td> <td>uitating that an par</td> <td>sue was wus</td> <td>be parties</td> </tr> <tr> <td>26</td> <td>an equitable interest in the Firm for which he worked. It was not until the 17th June</td> </tr> <tr> <td>27</td> <td>2016 that an Affidavit was filed on behalf of the husband’s Firm by LN, the Area</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 10 of 94 ```
Judgment: FAM 0066/2014: DJ v BJ Coram: Richards J. Date: 05.8.2019 Page 11 of 94 Director of Finance and Operations. This essentially confirmed that he was not the holder of shares in the entity and the distribution of his salary as he had previously outlined. The 20% reserve is required as a "capital true up". Within that Affidavit was an offer for Counsel for the wife to inspect the Firm's documents in relation to the interests of the husband. The husband says that various appointments and arrangements were made by the Firm which were cancelled by the wife or by her Attorney and that the wife did not act positively on this offer until the end of 2018. The husband also complained that the wife's disclosure was deficient in not providing all her bank statements and a valuation for her self-employed business. The following is a combination of the submissions of both parties: | Date | Event | | --- | --- | | 11th July 2014 | Wife's Request for Further and better particulars. | | 19th December 2014 | Husband Replies to Request. | | 2 October 2015 | Costs Appeal hearing, husband's application is refused on 30th October 2015. | | 9th October 2015 | Husband provides further Affidavit of disclosure. | | 2016 | Leave to amend the wife's petition in form of the amended petition filed. | | | Time extended for the full compliance with paragraph 4 of the order of 4.09.15 [husband's disclosure] to 17.06.16 Penal notice attached | | 17 June 2016 | Affidavit provided on behalf of husband by member of his Firm – Invitation to review Firm's documentation. | | 1 December 2016 | Order that Further Amended Petition is Proved. | | 2017 | 1 February 2017 Invitation from husband to review Firm's documents. | | 3 August 2017 | Appointment cancelled. | | 1 September 2017 | Exchange rolled by Attorney. | | 2017 | October Request for Disclosure from wife (disclosure request). | | | 14th December: Further and Disclosure Request for evidence. | | | Discussion of Consents by wife. | Footnotes:

¶ [1] Page 272 of Trial bundle

¶ [2] Page 306 of the Trial Bundle.
By 10.01.18 parties are to provide disclosure of the material requested in Attorney correspondence respectively dated 22.09.17 and 29.09.17. If such disclosure is inadequate, either party shall be at liberty to set the matter down for determination of specific disclosure requests. In the event that that is necessary, further directions for the future conduct if the matter shall be made at the conclusion of the disclosure hearing. If there is no such disclosure hearing, either party shall be at liberty to set the matter down for hearing not less than 21 days after disclosure as provided for above at (5). All evidence upon which either party seeks to rely shall be served not less than 21 days before the final hearing. Any further evidence only with leave of the court. Parties to comply with practice direction 11 of 2014 in respect of court bundles and the contents thereof. | 2018 | 12 January 2018 | Reply to wife's 2^nd Disclosure Request – Further disclosure provided. | | --- | --- | --- | | | 7 February 2018 | First Notice of Intention to Act in Person filed by wife. | | | 1 November 2018 | Receipt of wife's 3^rd Disclosure Request. | | | 28 November 2018 | Response to wife's 3^rd Disclosure Request. | | | 3 December 2018 | Receipt of wife's 4^th Disclosure Request. | | | 20 November 2018 | First listing of final ancillary hearing. Moved to 1 December 2018 for court convenience. | | | 28 November 2018 | Response to wife's 4^th Disclosure Request. | | | 30 November 2018 | Application to vacate by wife - granted at contested hearing. | | | 4 December 2018 | By Order of 4.12.18 (4 December Order) directions for Final Ancillary Hearing, including court stating that this "is not a case that there has been a failure to disclosure [by husband]" | | 2019 | 11 January 2019 | Further disclosure provided by husband in accordance with 4 December Order. | | | 8 February 2019 | Wife's previous attorney, attends offices of Firm to inspect documentation. | | | 18 February 2019 | Second listing of final ancillary hearing. Adjourned by agreement of the parties at request of Wife in letter dated 18 January 2019. | | | 19 March 2019 | Second Notice of Intention to Act in Person from wife. | | | 20 March 2019 | Date for exchange of Affidavits for final ancillary hearing. | | | 01 April 2019 | Third listing of final ancillary hearing. Adjourned at contested application by wife. | | | 03 June 2019 | Fourth listing of final ancillary hearing. | Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 12 of 94
The Terms of the Pre-Nuptial Agreement The Agreement is dated 16th February 2012 and is expressed to be binding on the parties and enforceable within the jurisdiction of the Cayman Islands. It begins with a number of recitals at items 'A' to 'K', under the headings of Intended marriage, Children, Intention to deal with financial arrangements, Separate property, Joint property, Independent advice, Duress, Agreement to be legally binding, Disclosure, Jurisdiction and domicile and Will. It records at recital 'A' that it is made in contemplation of, and is conditional upon, the intended marriage of A (the husband) and B (the wife) on or before the 28th February 2012. Under recital 'B', it states that the terms of the Agreement are intended to reflect their decision to have or adopt children. Under recital 'C' it states that the expressed intention is for them to enter into an agreement to record their wishes and intentions regarding their financial arrangements in the event of a decree of divorce, nullity or judicial separation and to set out their respective rights and obligations in the event of these outcomes. Paragraph (ii) under this recital states: "A and B each intend that this Agreement shall set out their respective rights and obligations in respect of the other in the event of a decree of divorce, nullity or judicial separation." Ait states that each party has been advised of the rights and obligations under the Agreement and has had the opportunity to seek independent legal advice. Each party has read the Agreement and has had its meaning and legal consequences explained to them. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019
```markdown explained, and that they understand and are satisfied with its provisions and its legal and practical consequences. Further at paragraph 'F(d)' is the express acknowledgment and agreement of the parties that they have been informed that in the event of a divorce, nullity or judicial separation, the court may make orders pursuant to the Matrimonial Causes Law which orders might not be reflective of the terms of the Agreement. Recital 'G' states that neither party has been placed under duress to enter into the Agreement, which is entered into less than 21 days before the date of the marriage. Under recital 'I', dealing with disclosure, the parties acknowledge that party A has elected not to include bank account or investment values and that investment values will vary and be approximate. They further acknowledge that they have not sought to obtain a clear and full valuation of A's shares in his Firm's partnership or in B's shares in a Trust. Each party annexed to the Agreement, lists of what is described as separate property. Separate property is defined in Recital 'D' as all their assets, savings and pension provisions acquired prior to entering into the marriage, as set out in the list annexed, any increase in the value of such property and any additional property, assets or savings acquired by either A or B at any time in the future by way of gift or inheritance. The property of the wife included raw land in the Cayman Islands, a vehicle, and certain shares, savings accounts and interest in family property in another country. The separate property of the Husband included five bank accounts, three investment ``` ```html <table> <tr> <td>24</td> <td>25</td> <td>26</td> <td>27</td> </tr> </table> ``` ```latex \textit{Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019} \textit{Page 14 of 94} ```
```markdown accounts, two motor vehicles, a house in George Town, an apartment in George Town, (the matrimonial home in Prospect), one parcel of raw land, two insurance policies, pension and partnership interest in his Firm which is described as his, "Ownership Percentage as a Partner / Owner of Firm." Under paragraph 3, following agreement to each keep their separate property, paragraph 3(f) states that any debts incurred by each during the marriage shall be the separate financial obligation of each save for an exception which is stated in the following way: However A and B will both be responsible for all medical expenses, not covered by insurance, that are incurred during the marriage for children of the marriage and each other. Paragraph 4 is the critical provision for the purpose of this hearing. It is under the heading Joint Property and states: "In the event of a dissolution of (or) annulment of the marriage any assets (including income and bonuses), savings or property acquired by either A or B during the marriage, whether held jointly or severally shall be distributed between A and B in equal shares, unless they have expressly declared that the beneficial interests in any such asset shall be held otherwise than in equal shares, in which case that declaration shall be binding upon them." By paragraph 5, in the event of divorce, nullity or judicial separation, the equity in any family home acquired after the marriage (the family home) shall be divided equally after either sale to one or other party or sale on the open market provided that in the event of children, the property is not to be sold until the youngest child attains 18 years of age so as at the child's age to contribute to the family home in proportion to their financial capabilities towards the expenses including mortgage, insurance or maintenance. ``` This transcription accurately reflects the content of the provided text, using Markdown for headings and paragraph structure, HTML for tables (if any were present, which they are not in this case), and LaTeX for math (which is not present in the text).
```markdown # Judgment: FAM 0066/2014: DJ v BJ Coram: Richards J. Date: 05.8.2019 Page 16 of 94

¶ [43] Paragraph 6 is entitled "provision on divorce, annulment or judicial separation". It begins with the introductory words that, A and B agree that in the event that their marriage is terminated by decree of divorce or annulment, or in the event of a decree of judicial separation in the first 7 years of the marriage, their financial claims will be defined and limited as follows.

¶ [44] There then follow eight sub-paragraphs which are entitled, separate property, family home, joint assets, chattels/personal possessions and contents, child support, pension provision, debts and consent order. These provide, inter alia, for separate property to remain free of claim by the other, for the family home to be dealt with in accordance with paragraph 5, for contents and for personal possessions in the family home to be divided equally by agreement except for items of sentimental value. Of significance, under the heading joint assets it states: (c) Any other assets, property, savings or investments shall be dealt with in accordance with paragraph 4 above. Any bank accounts or savings accounts or other investments will be closed and the balance in such accounts will be divided equally between them, or in such other proportion as they may have otherwise agreed in writing. In the event that any such accounts are overdrawn, any such liability will be discharged in equal shares.

¶ [45] Under the heading child support paragraph 6(e) states: (e) A agrees that he will, make suitable income provision for any children of the marriage by way of periodical payments to B for the benefit of the children, the amount of such periodical payments being fixed by agreement between the parties, or in the absence of agreement, as ordered by the Court. Such periodical payments shall be made monthly in advance by standing order from A to B on the 1st day of each month until the children family respell time. teria assistosies. Insofucance costspernses and n of the tion and r dical ins, mricular el dchild/child ance expensur's, extra-xpention of threnses, all educmerelated curs the ede cedical ex 'omestic marriage, A and B agrees that such child shall attend a boarding school for their secondary education and such expenses shall be bourne (sic) by A. ```
```markdown # Pension Provision

¶ [46] Pension Provision is covered by paragraph 6(f) which provides that the parties agree that neither will pursue a claim on the other's pension provision either by way of a pension sharing order or pension attachment order or by way of set off.

¶ [47] Under paragraph 6(g), Debts, it is agreed as follows: "A and B will remain solely responsible for debts in their sole name at the Date of Separation without any claim from or upon the other save for debts incurred due to medical expenses of either A or B or any child of the marriage."

¶ [48] Finally, of import, is paragraph 10 which deals with the duration of the Agreement. This provides that the terms of this Agreement shall be reviewed and varied unless both parties agree not to vary with the benefit of independent legal advice when there is the birth or adoption of a child of the marriage, seven years have elapsed from the date of the marriage or either party is unemployed or unable to work for a period in excess of 12 months.

¶ [49] In summary the Agreement: i) excludes the matrimonial home from property division as it was not acquired after the marriage and was listed as separate property; ii) excludes pension sharing; iii) excludes from property sharing any property acquired during the period of pre-marital cohabitation; iv) excludes any claim for maintenance by the wife; v) provides for the husband to make such claims for maintenance as he may have in respect of any child of the marriage until such time as the child attains the age of 18 years or completes his education at a tertiary level, whichever is the earlier. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 17 of 94 ```
```html <table> <tr> <td>1</td> <td>vi)</td> <td>uses as its date reference point， the date of judicial separation or other Court</td> </tr> <tr> <td>2</td> <td>pronouncement rather than the breakdown of the marriage or separation of</td> </tr> <tr> <td>3</td> <td>the parties；</td> </tr> <tr> <td>4</td> <td>vii)</td> <td>purports to define the period for sharing property which period may or not</td> </tr> <tr> <td>5</td> <td>be in line with the usual guidelines for the sharing of matrimonial property；</td> </tr> <tr> <td>6</td> <td>and</td> </tr> <tr> <td>7</td> <td>viii)</td> <td>was to be revisited by the parties on the birth of a child of the marriage.</td> </tr> </table> <h3>The Preparation of the Pre-Nuptial Agreement</h3> <p>50. The parties provide evidence as to the circumstances surrounding the preparation of the Agreement. Neither party challenges its validity. The husband’s Affidavit evidence is that they were slightly older than most couples, and because they both had pre-acquired assets, they made the informed and pragmatic decision to enter into an Agreement. He took legal advice and paid for the wife to have independent legal advice.</p> <p>51. He agrees that its focus was the support of prospective children of the marriage and acknowledges that he agreed to make suitable provision for such children. However he states that by “suitable” in paragraph 6 of the Agreement, he intended to mean appropriate and fair taking into account all the circumstances.</p> <p>52. The drafting of the Agreement took place over several weeks and both had ample opportunity to consider the provisions and requests.</p>

¶ [53] In his Affidavit filed 23rd May 2019, the husband says that their joint intention in entering into the Agreement was twofold: a. Those assets acquired before the marriage would be ring-fenced and would remain separate property; b. Assets acquired during marriage, up to the point of an irretrievable breakdown would be distributed equally.

¶ [54] With reference to clause 4 of the Agreement and the words "during the marriage", he says that his intention and understanding, and he believes, that this was their joint intention and understanding that this would mean from the date of the marriage up to the point of permanent breakdown of the marriage or separation. It was not intended he says that all the assets acquired up to the court date would be considered joint assets. He says that it is inconceivable that he would have agreed otherwise, when the whole point was to protect himself as the economically advantaged party.

¶ [55] In her Affidavit filed dated 7th May 2019 the wife stated that when she received the first draft of the Agreement, she felt that this was unfair as it did not provide for any accommodation or compensation for her considering that she would have to give up her career to raise children. She says that following many revised drafts, they were still unable to agree its terms, so on the eve of the initial wedding date in January 2012, it was postponed. She said that following a trip overseas they returned and agreed the terms of the Agreement, after nearly a dozen revised drafts, substantial discussion and counsel. The wife asserts that the comments on the carriage Agreement were a case husband then created, the carriage. She states: Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 19 of 94 ```
```markdown # Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 20 of 94

¶ [1] This agreement reflected our discussions to the effect that the Respondent would agree to take primary financial responsibility for any children. This was solely based on his financial capability as I did not anticipate that I would be able to support three additional children, given the impact that it would have upon my career development. I did not anticipate that I would be in a position to have a significant income, in light of the sacrifices required in caring for one or more young children. I have no doubt that the Respondent intended this outcome given his agreement of the final re-nuptial agreement.

¶ [2] During the course of discussions in respect to the terms of the prenuptial agreement, the only term not touched or revised, or amended in any way, was the definition of "the Date of Separation", a term used only on two occasions. That is, it was not only assumed and agreed between the Respondent and me, it was accepted that the pooling of assets would continue throughout the duration of the marriage stopping only for one of three events: a. the actual dissolution of marriage; b. an annulment; or c. the grant of judicial separation.

¶ [3] There was never any discussion, nor agreement that the pooling of assets would be stopped upon the filing of a petition, and this language and wording is not used and was never used or contemplated in all of the revisions of the prenuptial agreement."

¶ [56] Exhibited to her Affidavit are drafts of the Agreement and email correspondence with the husband on the Agreement for the dates, 12th December 2011, 29th December 2011, 30th January 2012, and 8th February 2012 with a final draft on 15th February 2012. In the final draft, the husband inserted the words "income and bonuses" into paragraph 4.

¶ [57] In oral evidence before me, both parties gave evidence of their separate understandings of the Agreement. The wife said that neither of them had disagreed with paragraph 4 of the Agreement following the drafting of it by her husband's Attorney. The husband acknowledged that there had been no insertion or amendment made to the Agreement for which he had any knowledge. ```
The Issues

¶ [58] Against this background the agreed issues for the Court's determination are as follows: i. Taking into Account the Agreement, what is a fair, financial provision for the wife, whether on a sharing, needs or compensation basis? ii. What is the proper construction of the Agreement? The wife contends that the words, "during the marriage" in paragraph 4 of the Agreement should be construed to mean until such time as a court orders the dissolution or annulment of the marriage. The husband contends that those words should be construed to mean until the date of irretrievable breakdown of the marriage. The construction given to these words would affect the date when the accumulation of joint assets ceased, being either March 2014 when the parties separated or as at 2019 when the Court orders the dissolution of the marriage. iii. In the event that the court finds for the wife in respect of (ii), whether such construction would be fair? iv. In the event that the court finds for the wife in respect of (ii), whether on a proper construction of the Agreement the husband's capital account/loan with his Firm should be considered to be Joint Property which falls to be distributed pursuant to paragraph 4 of the Agreement or whether it is Separate Property as defined at Recital D (a) (b) and (c) of the Agreement and/or at Appendix 1 of the Agreement. v. If the court finds for the wife in respect of (ii), whether such a construction would be fair. vi. Whether, in the circumstances of the present case, financial provision ought to be determined on a 'clean break' basis. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 21 of 94
The document appears to be a legal judgment or affidavit related to a divorce case. Below is the transcription of the visible text, formatted according to the instructions: --- **The Positions of the Parties as to Financial Matters**

¶ [59] The husband filed Affidavits dated 22<sup>nd</sup> March 2019 and 23<sup>rd</sup> May 2019. It is his Affidavit evidence that during the marriage, they kept their financial matters separate and had no joint assets or accounts in joint names. As at November 2018, he held assets of a value of CI$2,626,495.00 and liabilities of CI$415,872.00 giving a balance of CI $2,210,623.00<sup>7</sup>. His annual salary for 2018 was $369,900.00 and on top of this he received quarterly distributions of CI $33,125.00 per month. His total remuneration for 2018 was CI $754,400.00. His anticipated monthly remuneration from his Firm in 2019 is CI $62,866 per month or $754,400 per annum<sup>8</sup>. To be added to this is some CI $40,320.00 in rental income to an approximate total of $794,720.00.

¶ [60] He does not accept that the wife has net assets of only CI$ 287,870.00 and an income of CI $78,556.00 per annum and points to a second company of which the wife is a shareholder which made a profit of CI$26,326.31 in 2018 leading to total earnings of CI$394,883.00. He points to monthly <sup>7</sup> Affidavit of 22<sup>nd</sup> March 2019, paragraph 22 – page 307 Trial bundle <sup>8</sup> Affidavit of 22<sup>nd</sup> March 2019, paragraph 22 – page 307 Trial bundle --- This transcription is based on the visible text in the image provided. If there is more content or additional context that is not visible, it should be noted that the transcription is limited to what is shown in the image.
```html <table> <tr> <td>SB account</td> <td>0 balance as at Feb.2012</td> <td>62，635.16</td> </tr> <tr> <td>TD Ameritrade</td> <td>Starting balanceincreased</td> <td>258.76</td> </tr> <tr> <td>CNC Shares</td> <td>Increase from 3007 by5987 shares at a currentvalue of</td> <td>$30，683</td> </tr> <tr> <td>Chamber Pension Plan</td> <td>Increase from startingbalance</td> <td>7，389.11</td> </tr> <tr> <td>Retained income atFirm</td> <td>Calculated by decreasein bank balance level</td> <td>24，896.13</td> </tr> <tr> <td>Loan made to CX inreturn for 20% share</td> <td></td> <td>26，012.00</td> </tr> <tr> <td>Loan repayments</td> <td></td> <td>24，525.38</td> </tr> <tr> <td></td> <td></td> <td>215225，33</td> </tr> </table> ``` ```html <table> <tr> <td>Bank Account balances</td> <td>Increase over starting balances</td> <td>550.11</td> </tr> <tr> <td>Mortgage principal repayments</td> <td></td> <td>27，116.00</td> </tr> <tr> <td>Loan repayments</td> <td></td> <td>5，486.99</td> </tr> <tr> <td>Pension</td> <td>Increase in value</td> <td>5，769.11</td> </tr> <tr> <td></td> <td></td> <td>$38，022.00</td> </tr> </table> ``` ```latex \textbf{61.} For the period which he says is covered by the Agreement, that is the period through to March 2014, he calculates his assets acquired from the 17th February 2012 to 29th March 2014 as follows: \begin{table}[h] \centering \begin{tabular}{|c|c|c|} \hline & SB account & CI \\ \hline & 0 balance as at Feb. & 62,635.16 \\ & 2012 & \\ \hline & TD Ameritrade & \\ & Starting balance & 258.76 \\ & increased & \\ \hline & CNC Shares & \\ & Increase from 3007 by & $30,683 \\ & 5987 shares at a current & \\ & value of & \\ \hline & Chamber Pension Plan & \\ & Increase from starting & 7,389.11 \\ & balance & \\ \hline & Retained income at & \\ & Firm & \\ & Calculated by decrease & 24,896.13 \\ & in bank balance level & \\ \hline & Loan made to CX in & \\ & return for 20% share & 26,012.00 \\ \hline & Loan repayments & 24,525.38 \\ \hline & & 215225,33 \\ \hline \end{tabular} \caption{Husband's Assets} \end{table} \textbf{62.} He calculates the Wife's Assets over the same period to be: \begin{table}[h] \centering \begin{tabular}{|c|c|c|} \hline & Bank Account balances & \\ \hline & Increase over starting balances & 550.11 \\ \hline & Mortgage principal repayments & 27,116.00 \\ \hline & Loan repayments & 5,486.99 \\ \hline & Pension & \\ & Increase in value & 5,769.11 \\ \hline & & $38,022.00 \\ \hline \end{tabular} \caption{Wife's Assets} \end{table} \textbf{63.} By the husband's calculations the total sum acquired by the wife during the relevant period was CI$38,022.00. In the course of an exchange of offers, the husband in his most recent open offer of 23rd May 2019, has offered the wife the lump sum of $225,000.00 payable in four tranches. ```
The husband complains that despite the wife earning an annual income of over $100,000.00 per year, he has been meeting more than half of her monthly rental costs and all her utility costs in circumstances where she had her adult daughter living there as well as an employee living rent free for some three years. He does not consider that it is fair that he should be subsidizing the ordinary living expenses of the wife and her daughter and employee to such a large extent and for such a long a period and asks the court to take this into account. He estimates that he has been paying 55% of her rental costs and 100% of utility costs and does not consider that he should be paying more than 50% of each. He notes that up to September 2017, her rent was only $4,000.00 rather than the $4,400.00 anticipated and he was therefore paying more than he should have been paying as per the Court order. The wife’s evidence was that she used any additional funds for the benefit of J. His primary complaint is that it is not fair that the wife makes no contribution at all. In relation to maintenance payments he calculates that given that he earns 5 times more than the wife, the wife should have been paying 20% of the maintenance costs over the period since the first interim order was made in August 2014. He notes that he meets 100% of J’s special needs costs and suggests that the wife should have been meeting some of these costs to the same 20% ratio but would agree for this to be reduced to 10% on the basis that J. may not have undertaken some classes if it had been known that he was not going to pay for them. In or all the foregoing reasons, he also suggests that there has been an overpayment of maintenance and that this should be taken into account on summary.
```markdown # Housing Proposal After the separation, the wife moved into a 3-bedroom property in South Sound and then to another property along the seven-mile beach corridor. She has moved for a third time since the separation. The husband puts forward two options with respect to J's long term accommodation requirements. These are: * "By the Petitioner continuing to rent a property with both parties contributing to that portion of the rental cost attributable to J in accordance with their means; or 2) by the purchase of an appropriate and suitable property which would be placed into a trust for the benefit of J. such property to be purchased in accordance with the parties respective means making allowance for the benefit of living in the property for the Petitioner and as set out below." He says that the alternative proposal for the purchase of trust property would be an excellent way to ensure that irrespective of what happens to him, J's long term financial future would be secured. Such property he says should be broadly equal to a rental payment of $4,400.00 per month i.e. a property valued in the range of $700,000.00 to $800,000.00. He proposes that the wife would meet 50% of the cost of this and he would meet a portion of the other 50% in line with the percentages of their respective incomes which would be either 42.5% or 44.45% depending on the Court's fithe level of life. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 25 of 94 ```
```markdown He asked that the treatment costs for J (approximately $5,000.00 per month) and the maintenance payments which include $2,420.00 for rent and $1,000 for utility bills for J. be met proportionately according to income. In his oral evidence, it is fair to say that the husband presented a somewhat different picture from that in his Affidavits. He made a number of concessions as to his willingness to meet all the costs of J’s therapy needs and for a more experienced nanny for him, and to fund a substantial part of a deposit on the purchase of a home - provided it was held on trust for J. He came across as having a deep and abiding love for his son and to be willing to go the extra mile to provide for his needs and assist in his development. He spoke of J. as bearing his own father’s name and his belief that J. should be given every opportunity in life. He said that everything that J. needs he is “footing the bill and is all in.” According to the wife in her Affidavit, her income level is between $60,000 and $100,000 per annum. She has used her entire life savings during the last five years for legal fees, the startup of her Firm and to cover the shortfall in the interim orders for maintenance. At the time of the marriage she had two properties, one a home in George Town from which she had been earning rental income, and the other raw land. She has since sold both of these. She complained that the husband has been underpaying towards maintenance. It is her position that, by the Agreement, save for housing costs which are based proportionally on the husband’s income, the required educational and medical related costs for the entirety of J. should be paid by the husband. She says that he has underpaid for housing since 2014 to the extent of $86,685.00 and underpaid a total underpayment since Sept. 2018, a period of 9 months of CI $1102.50. ``` This transcription is based on the content visible in the image provided.
```html <table> <tr> <td>1</td> <td>for utilities based on his earnings. She asserts that the interim maintenance order had</td> </tr> <tr> <td>2</td> <td>been deficient giving rise to a total underpayment by the husband of $108，434.25 and</td> </tr> <tr> <td>3</td> <td>that the current order is deficient by $3，600.00 per month. In part she bases this</td> </tr> <tr> <td>4</td> <td>underpayment calculation on the actual costs of utilities and other items as well as the</td> </tr> <tr> <td>5</td> <td>annual earnings of the husband which she referred to as being in the region of a million</td> </tr> <tr> <td>6</td> <td>dollars per annum. She acknowledged in cross examination that this was not the level</td> </tr> <tr> <td>7</td> <td>of his earnings so that where she had used payment ratios in her calculations of 90/10，</td> </tr> <tr> <td>8</td> <td>this was not accurate.</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>74.</td> <td>In her oral evidence she said that she is of the view that it is fair for the husband to</td> </tr> <tr> <td>11</td> <td>meet 100% of the maintenance costs， given the terms of the Agreement.</td> </tr> <tr> <td>12</td> <td>THE STATUTORY PROVISIONS</td> </tr> <tr> <td>13</td> <td>75.</td> <td>The Court's powers in respect of these ancillary proceedings are contained in sections</td> </tr> <tr> <td>14</td> <td>19 and 21 of the Matrimonial Causes Law (2005 Revision).</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>76.</td> <td>Section 19 provides that in dealing with all ancillary matters arising under this Law，</td> </tr> <tr> <td>17</td> <td>the Court shall have regard first of all to the best interests of any children of a marriage</td> </tr> <tr> <td>18</td> <td>and thereafter to the responsibilities， needs， financial and other resources， actual and</td> </tr> <tr> <td>19</td> <td>potential earning power and the deserts of the parties.</td> </tr> <tr> <td>20</td> <td>77.</td> <td>Section 21 provides that at the time of pronouncing a decree under this Law， the Court</td> </tr> <tr> <td>21</td> <td>shall， as appropriate， make orders for：(b) the trof matrimity， arriage；</td> </tr> <tr> <td>22</td> <td>(a) the and comial proper the</td> </tr> <tr> <td>23</td> <td>24</td> <td>custody， caronil of ren of the matrimo</td> </tr> <tr> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> 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<td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> 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<td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>22</td> <td>24</td> <td>25</td> <td>2
```html <table> <tr> <td>(e)</td> <td>making financial provision from the property of either spouse for the</td> </tr> <tr> <td>children of the marriage and for the other spouse;</td> </tr> <tr> <td>(f)</td> <td>providing for periodic payments to be made by either spouse for the benefit</td> </tr> <tr> <td>of the children of the marriage and for the other spouse; and</td> </tr> <tr> <td>(g)</td> <td>costs."</td> </tr> </table> There is guidance from the Court of Appeal in the case of McTaggart v. McTaggart 9 as to the interrelationship between these two provisions of the Law and their application. This includes that a court will need to consider whether having regard to the s.19 factors, an order under s.21(b) of the Law for the disposition of matrimonial property will make appropriate provision for the relevant party with regard to their needs and the level of compensation and sharing. If disposition of matrimonial property will not allow for the appropriate provision to be made, then the court should go on to consider whether to make an order under s.21(e) that financial provision be made from the property of either spouse. A court should not make an order for periodic payments under s.21(f) without good reason. Such good reason would arise where the combination of orders under s.21 (b) and (e) are insufficient to satisfy the three strands of need, compensation and sharing.10 Additionally the appellate Court made it clear that although the s.19 factors are less extensive than those in England and Wales, in the Matrimonial Cause Act 1973 as amended by the Matrimonial and Family Proceedings Act 1984, the approach in the Cayman Islands should be the same as in that jurisdiction.11 A court in exercising its ```
powers under the statutory provisions should therefore consider all the circumstances of a case to include the following: (a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; (c) the standard of living enjoyed by the family before the breakdown of the marriage; (d) the age of each party to the marriage and the duration of the marriage; (e) any physical or mental disability of either of the parties to the marriage; (f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; (h) in the case of proceedings for divorce . . . the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring. \footnote{Statutory Factors in England and Wales} \section*{APPLICABLE PRINCIPLES}

¶ [80] In considering the division of matrimonial property pursuant to s.21 of the Matrimonial Causes Law (2005 Revision) a court should first determine what constitutes matrimonial property. \footnote{Sec Wight v. Wight [2010] CILR 60 and McTaggart v. McTaggart [2011] (2) CILR 390 – paragraph 34, B-H v. H. [2009] CILR 185} The leading cases from England and Wales which have been cited with approval in this jurisdiction are the cases of White and White \footnote{[2000] UKHL J1026-3} and Miller v. Miller, McFarlane v. McFarlane. \footnote{[2006] UKHL 24} In White and White, Lord Nicholls of Birkenhead in considering inherited money or property and property owned by one spouse before the marriage said this: "In fairness property still was given to the other spouse has 'ainoperty. P an he or she the other a 'trimonialai spengarding' pr . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
```html <table> <tr> <td>1</td> <td>present, this factor is one of the circumstances of the case. It represents a</td> </tr> <tr> <td>2</td> <td>contribution made to the welfare of the family by one of the parties to the marriage.</td> </tr> <tr> <td>3</td> <td>The judge should take it into account. He should decide how important it is in the</td> </tr> <tr> <td>4</td> <td>particular case. The nature and value of the property, and the time when and</td> </tr> <tr> <td>5</td> <td>circumstances in which the property was acquired, are among the relevant matters</td> </tr> <tr> <td>6</td> <td>to be considered."</td> </tr> <tr> <td>7</td> <td>8</td> </tr> <tr> <td>9</td> <td>81.</td> <td>The guidance from the case of Miller v. Miller， McFarlane v. McFarlane includes</td> </tr> <tr> <td>10</td> <td>that in considering division of financial property, there is no place for discrimination</td> </tr> <tr> <td>11</td> <td>between a husband and wife and their respective roles. The homemaker role should be</td> </tr> <tr> <td>12</td> <td>given equal weight. A court should consider the three strands of need, compensation</td> </tr> <tr> <td>13</td> <td>and sharing which should guide the court in arriving at a fair division of property on</td> </tr> <tr> <td>14</td> <td>the dissolution of a marriage.</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>82.</td> <td>It is noted also from the case that the third strand of sharing applies to a short marriage</td> </tr> <tr> <td>17</td> <td>just as it does to a long marriage although for the former, this may have an impact on</td> </tr> <tr> <td>18</td> <td>the quantum to be shared.</td> </tr> <tr> <td>19</td> <td>20</td> <td>83.</td> <td>Lord Nicholls in his judgment in that case stated that fairness requires that when a</td> </tr> <tr> <td>21</td> <td>partnership ends each partner is entitled to an equal share of the assets of the</td> </tr> <tr> <td>22</td> <td>partnership unless there is good reason to depart from equality. The Learned Judge</td> </tr> <tr> <td>23</td> <td>emphasized that the yardstick of equality is not a rule but an aid.16</td> </tr> <tr> <td>24</td> <td>25</td> <td>84.</td> <td>The Learned Judge further stated that there is a real difference between matrimonial</td> </tr> <tr> <td>26</td> <td>property and non-matrimonial property and pointed to the difference being the source</td> </tr> <tr> <td>of tn. Property ed during the</td> <td>which wo</td> <td>al propertfrom</td> </tr> <tr> <td>he acquisitiwhic</td> <td>the matrimy a</td> </tr> <tr> <td>uim by</td> <td>eritance or gi</td> <td>uld usualbni</td> </tr> <tr> <td>27</td> <td>28</td> </tr> </table> <sup>16</sup> Miller v. Miller， McFarlane v. McFarlane [2006] UKHL 24 - Paragraphs 16 and 17 Judgment：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.8.2019 Page 30 of 94 ```
```html <table> <tr> <td>1</td> <td>property. Matrimonial property is the “financial product of the parties’ common</td> </tr> <tr> <td>2</td> <td>endeavor.” As to the matrimonial home, the Learned Judge said this:</td> </tr> <tr> <td>3</td> <td>“The parties’ matrimonial home even if this was brought into the marriage at the</td> </tr> <tr> <td>4</td> <td>out set by one of the parties, usually has a central place in any marriage. So it should</td> </tr> <tr> <td>5</td> <td>normally be treated as matrimonial property for this purpose. As already noted, in</td> </tr> <tr> <td>6</td> <td>principle the entitlement of each party to a share of the matrimonial property is the</td> </tr> <tr> <td>7</td> <td>same however long or short the marriage may have been.”</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>85.</td> <td>The Learned Judge went on to say that the position is different with regard to non-</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>matrimonial property. This is property which the parties bring with them into the</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>marriage or acquire by inheritance or gift during the marriage. With respect to such</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>86.</td> <td>property, the duration of the marriage may well be relevant although this may take</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>In discussing the import of the duration of the marriage, Baroness Hale of Richmond</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>in her judgment in the said case stated that it is recognized that where the starting</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>premise is separate property, there is still some scope for one party to acquire and</td> </tr> <tr> <td>23</td> </tr> <tr> <td>24</td> <td>87.</td> <td>retain separate property which is not to be shared equally between them. The Learned</td> </tr> <tr> <td>25</td> </tr> <tr> <td>26</td> <td>In McTaggart v. McTaggart18, the Cayman Islands Court of Appeal provided</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>guidance as to the way in which a Court should approach the issue of what is</td> </tr> <tr> <td>29</td> </tr> <tr> <td>property underw:</td> <td>property. Tive is not de M</td> <td>cept of“</td> <td>but it is</td> </tr> <tr> <td>30</td> <td>een that the zfin</td> <td>n to the on</td> <td>causes La</td> </tr> <tr> <td>31</td> <td>that concept</td> <td>s recognonlatrimonia</td> </tr> <tr> <td>32</td> <td>“It can be so section gtioned in theal</td> <td>trimonial</td> </tr> <tr> <td>33</td> <td>generally understood in the sense described by Lord Nicholls of Birkenhead in</td> </tr> <tr> <td>17</td> <td>Miller v. Miller, McFarlane v. McFarlane [2006] UKHL 24 - paragraph 153</td> </tr> <tr> <td>18</td> <td>[2011] 2 CILR 377</td> </tr> <tr> <td>Judgment：FAM 0066/2014：DJvBJ.Coram：Richards J.Date：05.8.2019</td> <td>Page 31 of 94</td> </tr> </table> ```
```html <html><body> <p>Miller v. Miller (5), that is to say, it comprises “property acquired during the marriage otherwise than by inheritance or gift” ([2006] 2 A.C. 618, at para. 22). Its distinguishing feature is that it is “the financial product of the parties’ common endeavour”<sup>19</sup>.</p> <p>The Court further stated:-</p> <p>“It is necessary therefore to identify those assets which are owned or under the control of one or other (or both) of the parties as at the date when the order is made and then to identify which of those available assets are matrimonial property and so capable of being the subject of an order under s.21(b).<sup>20</sup></p> <p>“There may be cases (of which, as I shall explain, the present provides an example in relation to the husband’s potential retirement benefits) where an asset which did exist at the date of final separation does not exist—or does not exist in the same form—at the date of the hearing. In such cases it will be necessary to consider whether the former asset can be traced into an after-acquired asset which can itself be treated (in whole or in part) as matrimonial property; and, if not, whether some other order (say, under s.21(e)) should be made to reflect the fact that the former asset has ceased to exist.</p> <p>The power conferred under s.21(b) of the Law is a power “to make an order for the disposition of matrimonial property.” There is no requirement under the Law that the disposition should give effect to an equal division of the matrimonial property as between the parties; and there is no invariable rule that the power should be exercised in a manner which achieves that effect. The requirement—imposed by s.19 of the Law—is that, in exercising the power, the court shall have regard to “the responsibilities, needs, financial and other resources, actual or potential earning power and the deserts of the parties.” It is plainly open to the court—if, having regard to those factors, it thinks it appropriate to do so—to make an order which effects an unequal division of the matrimonial property as between the parties. The order made in Wight v. Wight (11)—and upheld in this court—provides an example of such a case. In Miller (5) ([2006] 2 A.C. 618 at para. 16), Lord Nicholls observed that “the yardstick of equality is to be applied as an aid, not a rule.” But, as Lord Nicholls had pointed out in White v. White (10) ([2001] 1 A.C. 596, at 605)—in a passage expressly adopted by Lord Cooke of Thorndon (ibid., at 615)—“as a general guide, equality should be departed from only if, and to the extent that, there is good reason for doing so.”</p> <p>In Valerie Gordon v. Jefferson Watler<sup>21</sup>, the Appellate Court stated:</p> <p>“The correctus I have</p> <p>19 McTaggart v. McTaggart, Supra - Page 376</p> <p>20 McTaggart v. McTaggart, Supra - Page 390</p> <p>21 CICA Civil 13/2014- 22<sup>nd</sup> August 2014</p> </body></html> ```
```html <table> <tr> <td>1</td> <td>was unnecessary to go further. But if and so far as a division of the matrimonial</td> </tr> <tr> <td>2</td> <td>property could not meet those needs, then it would be necessary to consider whether</td> </tr> <tr> <td>3</td> <td>to make an order under section 21(e) in respect of the husband’s other assets.”</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>90.</td> <td>In the said case of McTaggart v. McTaggart22, the Appellate court also provided</td> </tr> <tr> <td>6</td> <td>guidance as to how a court should approach such applications where a primary issue</td> </tr> <tr> <td>7</td> <td>was the date of valuation of assets. The wife sought a share of property acquired after</td> </tr> <tr> <td>8</td> <td>the parties had separated and argued that the after acquired assets were the product of</td> </tr> <tr> <td>9</td> <td>their joint contributions and should be treated in the same way as matrimonial property</td> </tr> <tr> <td>10</td> <td>The Court held that matrimonial property was to be identified as at the date of</td> </tr> <tr> <td>11</td> <td>separation, but should be assessed on the basis of the values as at the date of allocation.</td> </tr> <tr> <td>12</td> <td>The husband’s after acquired assets did not constitute matrimonial property and were</td> </tr> <tr> <td>13</td> <td>not subject to the general principle of equal sharing.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>91.</td> <td>That case did not involve a pre-nuptial agreement and the Court stated:-</td> </tr> <tr> <td>16</td> <td>32</td> <td>Nor has there been any suggestion, in the present case, that the parties</td> </tr> <tr> <td>17</td> <td>entered into any nuptial or pre-nuptial settlement which should be varied</td> </tr> <tr> <td>18</td> <td>under the power conferred by s.21(c)；or that there is any other settlement</td> </tr> <tr> <td>19</td> <td>of matrimonial property in relation to which the power conferred by s.21(d)</td> </tr> <tr> <td>20</td> <td>could be exercised. For the purposes of this appeal, the court can proceed</td> </tr> <tr> <td>21</td> <td>on the basis that the powers which the judge could exercise in this case were</td> </tr> <tr> <td>22</td> <td>those conferred by s.21(b)，(e) and (f). In the exercise of those powers he</td> </tr> <tr> <td>23</td> <td>could make an order for the disposition of matrimonial property；he could</td> </tr> <tr> <td>24</td> <td>make an order for financial provision out of the property of one party (on</td> </tr> <tr> <td>25</td> <td>the facts in this case, out of the property of the husband) for the benefit of</td> </tr> <tr> <td>26</td> <td>the other (the wife)；and he could make an order that periodic payments be</td> </tr> <tr> <td>27</td> <td>made by one party (again, on the facts in this case, the husband) for the</td> </tr> <tr> <td>28</td> <td>benefit of the other."</td> </tr> <tr> <td>29</td> </tr> <tr> <td>92.</td> <td>W the general</td> <td>32</td> <td>Lords ino l-and，in the</td> </tr> <tr> <td>30</td> <td>ith respect t approach</td> <td>31</td> <td>31</td> <td>decision of the</td> </tr> <tr> <td>33</td> <td>2011(2) CILR 395</td> <td>Lord Miller (5)-stat</td> </tr> <tr> <td>34</td> <td>Baroness Hale-in order to identify the principles. Leaving aside，in this</td> </tr> <tr> <td>context，the best interests of the children (which，as I have said，are paramount)，</td> </tr> <tr> <td>Judgment：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.8.2019</td> <td>Page 33 of 94</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>there are three strands：need，compensation and sharing ([2006] 2 A.C. 618，at</td> </tr> <tr> <td>2</td> <td>paras. 10-16(per Lord Nicholls)；and at paras. 138-143(per Baroness Hale)）.</td> </tr> <tr> <td>3</td> <td>The ultimate objective，as Baroness Hale explained(ibid.，at para. 144) is to</td> </tr> <tr> <td>4</td> <td>give each party an equal start on the road to independent living. She said this：</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>“Thus far，in common with my noble and learned friend，Lord Nicholls</td> </tr> <tr> <td>7</td> <td>of Birkenhead，I have identified three principles which might guide the</td> </tr> <tr> <td>8</td> <td>court in making an award：need(generously interpreted)，</td> </tr> <tr> <td>9</td> <td>compensation，and sharing. I agree that there cannot be a hard and fast</td> </tr> <tr> <td>10</td> <td>rule about whether one starts with equal sharing and departs if need or</td> </tr> <tr> <td>11</td> <td>compensation supply a reason to do so，or whether one starts with need</td> </tr> <tr> <td>12</td> <td>and compensation and shares the balance. Much will depend upon how</td> </tr> <tr> <td>13</td> <td>far future income is to be shared as well as current assets. In general，</td> </tr> <tr> <td>14</td> <td>it can be assumed that the marital partnership does not stay alive for</td> </tr> <tr> <td>15</td> <td>the purpose of sharing future resources unless this is justified by need</td> </tr> <tr> <td>16</td> <td>or compensation. The ultimate objective is to give each party an equal</td> </tr> <tr> <td>17</td> <td>start on the road to independent living.”</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>Two of those three strands-need and sharing-require little，if any，</td> </tr> <tr> <td>20</td> <td>elaboration. But it is，I think，necessary to say something of the third：</td> </tr> <tr> <td>21</td> <td>compensation. Lord Nicholls explained the concept in these terms(ibid.，at</td> </tr> <tr> <td>22</td> <td>paras. 13-15)：</td> </tr> <tr> <td>23</td> <td>“Another strand，recognised more explicitly now than formerly，is</td> </tr> <tr> <td>24</td> <td>compensation. This is aimed at redressing any significant prospective</td> </tr> <tr> <td>25</td> <td>economic disparity between the parties arising from the way they conducted</td> </tr> <tr> <td>26</td> <td>their marriage. For instance，the parties may have arranged their affairs in</td> </tr> <tr> <td>27</td> <td>a way which has greatly advantaged the husband in terms of his earning</td> </tr> <tr> <td>28</td> <td>capacity but left the wife severely handicapped so far as her own earning</td> </tr> <tr> <td>29</td> <td>capacity is concerned. Then the wife suffers a double loss：a diminution in</td> </tr> <tr> <td>30</td> <td>her earning capacity and the loss of a share in her husband’s enhanced</td> </tr> <tr> <td>31</td> <td>income. This is often the case. Although less marked than in the past，women</td> </tr> <tr> <td>32</td> <td>may still suffer a disproportionate financial loss on the breakdown of a</td> </tr> <tr> <td>33</td> <td>marriage because of their traditional role as home-maker and child-carer.</td> </tr> <tr> <td>34</td> </tr> <tr> <td>35</td> <td>When this is so，fairness requires that this feature should be taken into</td> </tr> <tr> <td>36</td> <td>account by the court when exercising its statutory powers. The Court of</td> </tr> <tr> <td>37</td> <td>Appeal decision in SRJ v. DWJ(Financial Provision) [1999] 2 FLR 176，</td> </tr> <tr> <td>38</td> <td>182，is an example where this was recognised expressly.</td> </tr> <tr> <td>39</td> </tr> <tr> <td>40</td> <td>Compensation and financial needs often overlap in practice，so double-</td> </tr> <tr> <td>41</td> <td>counting has to be avoided. But they are distinct concepts，and they are far</td> </tr> <tr> <td>42</td> <td>from coterminous. A claimant wife may be able to earn her own living but</td> </tr> <tr> <td>43</td> <td>she mtitled to a n</td> </tr> <tr> <td>44</td> <td>nee</td> </tr> <tr> <td>45</td> <td>Baro</td> </tr> <tr> <td>47</td> <td>48</td> <td>49</td> <td>50</td> <td>compensation for relationship-generated disadvantage. Indeed，</td> </tr> <tr> <td>some consider that provision for need is compensation for</td> </tr> <tr> <td>relationship-generated disadvantage. But the economic</td> </tr> <tr> <td>disadvantage generated by the relationship may go beyond need，</td> </tr> </table> Judgment：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.8.2019 Page 34 of 94 ```
```html <table> <tr> <td>1</td> <td>however generously interpreted. The best example is a wife, like</td> </tr> <tr> <td>2</td> <td>Mrs McFarlane, who has given up what would very probably have</td> </tr> <tr> <td>3</td> <td>been a lucrative and successful career. If the other party, who has</td> </tr> <tr> <td>4</td> <td>been the beneficiary of the choices made during the marriage, is a</td> </tr> <tr> <td>5</td> <td>high earner with a substantial surplus over what is required to meet</td> </tr> <tr> <td>6</td> <td>both parties' needs, then a premium above needs can reflect that</td> </tr> <tr> <td>7</td> <td>relationship-generated disadvantage."</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>42</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>43</td> </tr> <tr> <td>13</td> <td>It seems to me reasonably clear (and I would so hold) that, if satisfied that</td> </tr> <tr> <td>14</td> <td>an order under s.21(b) of the Law (or the combination of orders under</td> </tr> <tr> <td>15</td> <td>s.21(b) and (e)) would make appropriate provision for the relevant party in</td> </tr> <tr> <td>16</td> <td>respect of the three strands (need, compensation and sharing), the court</td> </tr> <tr> <td>17</td> <td>should not (without good reason) make an order for periodic payments</td> </tr> <tr> <td>18</td> <td>under s.21(f). To make an order for periodic payments-in circumstances</td> </tr> <tr> <td>19</td> <td>where such an order is unnecessary because appropriate provision can be</td> </tr> <tr> <td>20</td> <td>made by the disposition of matrimonial property (under s.21(b)) or by a</td> </tr> <tr> <td>21</td> <td>capital adjustment from the separate property of the other party (under</td> </tr> <tr> <td>22</td> <td>s.21(e))—would be inconsistent with the principle of the “clean break” to</td> </tr> <tr> <td>23</td> <td>which Lord Scarman referred in Minton v. Minton (6) ([1979] A.C. at 608)：</td> </tr> <tr> <td>24</td> <td>“There are two principles which inform the modern legislation. One</td> </tr> <tr> <td>25</td> <td>is the public interest that spouses, to the extent that their means</td> </tr> <tr> <td>26</td> <td>permit, should provide for themselves and their children. But the</td> </tr> <tr> <td>27</td> <td>other-of equal importance—is the principle of ‘the clean break.’</td> </tr> <tr> <td>28</td> <td>The law now encourages spouses to avoid bitterness after family</td> </tr> <tr> <td>29</td> <td>break-down and to settle their money and property problems. An</td> </tr> <tr> <td>30</td> <td>object of the modern law is to encourage each to put the past behind</td> </tr> <tr> <td>31</td> <td>them and to begin a new life which is not over-shadowed by the</td> </tr> <tr> <td>32</td> <td>relationship which has broken down. It would be inconsistent with</td> </tr> <tr> <td>33</td> <td>this principle if the court could not make, as between the spouses, a</td> </tr> <tr> <td>34</td> <td>genuinely final order...”</td> </tr> <tr> <td>35</td> </tr> <tr> <td>36</td> <td>93.</td> <td>In Wight v. Wight23, the Appellate court held that the earnings of the husband after</td> </tr> <tr> <td>37</td> <td>separation did not constitute matrimonial property the court referred to Rossi v Rossi</td> </tr> <tr> <td>38</td> <td>which drew a distinction between property earned after separation by a party's</td> </tr> <tr> <td>39</td> <td>sevor, and a mt which has s</td> </tr> <tr> <td>40</td> <td>parate enda atrimonal ased in value</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>19</td> <td>In Rossi v. Rossi (8)，Nicholas Mostyn，Q.C.，sitting as a Deputy Judge of</td> </tr> <tr> <td>2</td> <td>the High Court，stated ([2006] 3 F.C.R. 271，at paras. 13-24.4)：</td> </tr> <tr> <td>3</td> <td>“[13]</td> <td>Thus it has always been the case that，where a party</td> </tr> <tr> <td>4</td> <td>has by virtue of his own industry created further</td> </tr> <tr> <td>5</td> <td>assets after separation，such sole unmatched</td> </tr> <tr> <td>6</td> <td>contribution should be recognised and reflected by</td> </tr> <tr> <td>7</td> <td>the court in its award. On the other hand，if a</td> </tr> <tr> <td>8</td> <td>matrimonial asset has simply increased in value</td> </tr> <tr> <td>9</td> <td>during the period of separation as a result of</td> </tr> <tr> <td>10</td> <td>passive inflationary economic growth (such as the</td> </tr> <tr> <td>11</td> <td>increase in the value of a house) then it would seem</td> </tr> <tr> <td>12</td> <td>obvious that such growth is an accrual to the</td> </tr> <tr> <td>13</td> <td>original matrimonial property.</td> </tr> <tr> <td>14</td> <td>...</td> </tr> <tr> <td>15</td> <td>[24.3]</td> </tr> <tr> <td>16</td> <td>Assets acquired or created by one party after (or</td> </tr> <tr> <td>17</td> <td>during a period of) separation may qualify as non-</td> </tr> <tr> <td>18</td> <td>matrimonial property if it can be said that the</td> </tr> <tr> <td>19</td> <td>property in question was acquired or created by a</td> </tr> <tr> <td>20</td> <td>party by virtue of his personal industry and not by</td> </tr> <tr> <td>21</td> <td>use (other than incidental use) of an asset which</td> </tr> <tr> <td>22</td> <td>has been created during the marriage and in</td> </tr> <tr> <td>23</td> <td>respect of which the other party can validly assert</td> </tr> <tr> <td>24</td> <td>an unascertained share. Obviously，passive</td> </tr> <tr> <td>25</td> <td>economic growth on matrimonial property that</td> </tr> <tr> <td>26</td> <td>arises after separation will not qualify as non-</td> </tr> <tr> <td>27</td> <td>[24.4]</td> <td>matrimonial property.</td> </tr> <tr> <td>28</td> <td>If the post-separation asset is a bonus or other</td> </tr> <tr> <td>29</td> <td>earned income then it is obvious that if the payment</td> </tr> <tr> <td>30</td> <td>relates to a period when the parties were</td> </tr> <tr> <td>31</td> <td>cohabiting then the earner cannot claim it to be</td> </tr> <tr> <td>32</td> <td>non-matrimonial. Even if the payment relates to a</td> </tr> <tr> <td>33</td> <td>period immediately following separation I would</td> </tr> <tr> <td>34</td> <td>myself say that it is too close to the marriage to</td> </tr> <tr> <td>35</td> <td>justify categorisation as non-matrimonial.</td> </tr> <tr> <td>36</td> <td>Moreover，I entirely agree with Coleridge，J. when</td> </tr> <tr> <td>37</td> <td>he points out that during the period of separation</td> </tr> <tr> <td>38</td> <td>the domestic party carries on making her non-</td> </tr> <tr> <td>39</td> <td>financial contribution but cannot attribute a value</td> </tr> <tr> <td>40</td> <td>thereto which justifies adjustment in her favour.</td> </tr> <tr> <td>41</td> <td>Although there is an element of arbitrariness here</td> </tr> <tr> <td>42</td> <td>I myself would not allow a post-separation bonus</td> </tr> <tr> <td>43</td> <td>to be classed as non-matrimonial unless it related</td> </tr> <tr> <td>44</td> <td>to a period which commenced at least 12 months</td> </tr> <tr> <td>45</td> <td>afteronths</td> </tr> <tr> <td>46</td> <td>after</td> </tr> <tr> <td>47</td> </tr> </table> Judgment：FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.8.2019 Page 36 of 94 ```
Applicable Principles - Pre-nuptial agreements

¶ [94] An important issue in this case is the approach to be taken to the pre-nuptial agreement entered into by the parties. The leading case in England and Wales is *Granatino v. Radmacher*<sup>24</sup>. The parties entered into a pre-nuptial agreement by which each renounced any interest in the property of the other. In particular the husband renounced any interest in the property of his wife who was from a very wealthy family. On an ancillary relief application by the husband, the Supreme Court determined that in the circumstances of the case, the agreement should have been given decisive weight by the judge at first instance and that the only provision to be made for him was in his role as a father to the couple’s two children. The Supreme Court stated that when considering a grant for ancillary relief, a court is not obliged to give effect to nuptial agreements. This is because it is the court which is the arbiter of financial arrangements on conclusion of a marriage. The Supreme Court determined that weight is to be given to such agreements in circumstances where it was fair to do so. Significantly the Court held that even where the result was different from that which the court would otherwise have ordered, the Court would still hold the parties to the agreement. Before giving such agreements full weight a court should consider certain safeguards to include inquiry into whether each party: i) had entered into the agreement of their free will; ii) had entered into the agreement without undue influence of pressure; iii) had all the information material to his or her decision; iv) intended that it would govern their financial affairs at the end of the marriage and beyond. <sup>24</sup> [2010] UKSC 42. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 37 of 94
```html <table> <tr> <td>1</td> <td>v)</td> <td>fully understood and appreciated the implications of the agreement.</td> </tr> <tr> <td>2</td> <td>This inquiry must be conducted in an effort to determine whether there are vitiating</td> </tr> <tr> <td>3</td> <td>factors such as duress, fraud or misrepresentation, undue pressure, or unworthy</td> </tr> <tr> <td>4</td> <td>conduct such as exploitation of a dominant position which would serve to negate or</td> </tr> <tr> <td>5</td> <td>reduce the effect of an agreement.</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> <td>95.</td> <td>Where the questions were answered to the satisfaction of the court and none of the</td> </tr> <tr> <td>8</td> <td>vitiating factors are present it should give effect to the agreement unless it would not</td> </tr> <tr> <td>9</td> <td>be fair to do so. The Supreme Court explained that the underlying rationale for giving</td> </tr> <tr> <td>10</td> <td>effect to such agreements is that the court should accord respect to the decision of a</td> </tr> <tr> <td>11</td> <td>married couple as to how they would wish to settle their financial affairs. The Court</td> </tr> <tr> <td>12</td> <td>noted that this is particularly true where the agreement speaks to existing</td> </tr> <tr> <td>13</td> <td>circumstances rather than the contingencies of an uncertain future. With respect to the</td> </tr> <tr> <td>14</td> <td>latter, changing circumstances may well make the agreement unfair. The Court also</td> </tr> <tr> <td>15</td> <td>identified one major caveat to the operation of such agreements. It is that they cannot</td> </tr> <tr> <td>16</td> <td>be allowed to affect negatively the reasonable requirements of any minor children.</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> <td>96.</td> <td>Additionally the Court held that while there was nothing inherently unfair about such</td> </tr> <tr> <td>19</td> <td>agreements and about provision being made for the disposition of non-matrimonial</td> </tr> <tr> <td>20</td> <td>property, they could be rendered unfair by the existing circumstances and unforeseen</td> </tr> <tr> <td>21</td> <td>contingencies. It would be unfair if the end result was that one party was left in a</td> </tr> <tr> <td>22</td> <td>sit need as comer party or in</td> </tr> <tr> <td>23</td> <td>compensation</td> </tr> <tr> <td>24</td> <td>uation of rea</td> </tr> <tr> <td>25</td> <td>97.</td> <td>Under the latter heading of needs and compensation, the Court said this:</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 38 of 94 ```
```html <table> <tr> <td>1</td> <td>81.</td> <td>Of the three strands identified in White v White and Miller v Miller, it is the</td> </tr> <tr> <td>2</td> <td>first two, needs and compensation, which can most readily render it unfair</td> </tr> <tr> <td>3</td> <td>to hold the parties to an ante-nuptial agreement. The parties are unlikely to</td> </tr> <tr> <td>4</td> <td>have intended that their ante-nuptial agreement should result, in the event</td> </tr> <tr> <td>5</td> <td>of the marriage breaking up, in one partner being left in a predicament of</td> </tr> <tr> <td>6</td> <td>real need, while the other enjoys a sufficiency or more, and such a result is</td> </tr> <tr> <td>7</td> <td>likely to render it unfair to hold the parties to their agreement. Equally if</td> </tr> <tr> <td>8</td> <td>the devotion of one partner to looking after the family and the home has left</td> </tr> <tr> <td>9</td> <td>the other free to accumulate wealth, it is likely to be unfair to hold the</td> </tr> <tr> <td>10</td> <td>parties to an agreement that entitles the latter to retain all that he or she</td> </tr> <tr> <td>11</td> <td>has earned.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>82.</td> <td>Where, however, these considerations do not apply and each party is in a</td> </tr> <tr> <td>14</td> <td>position to meet his or her needs, fairness may well not require a departure</td> </tr> <tr> <td>15</td> <td>from their agreement as to the regulation of their financial affairs in the</td> </tr> <tr> <td>16</td> <td>circumstances that have come to pass. Thus it is in relation to the third</td> </tr> <tr> <td>17</td> <td>strand, sharing, that the court will be most likely to make an order in the</td> </tr> <tr> <td>18</td> <td>terms of the nuptial agreement in place of the order that it would otherwise</td> </tr> <tr> <td>19</td> <td>have made."</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>98.</td> <td>In that case, against the factual matrix that the husband was able to earn his own living</td> </tr> <tr> <td>22</td> <td>and that the generous relief given to cater for the needs of the two children would also</td> </tr> <tr> <td>23</td> <td>provide in large measure for him, the court did not consider that the needs of the</td> </tr> <tr> <td>24</td> <td>husband was a factor that would render it unfair to hold him to the terms of</td> </tr> <tr> <td>25</td> <td>agreement. As to sharing it was held that it would be fair to hold him to the terms of</td> </tr> <tr> <td>26</td> <td>the agreement.</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> <td>99.</td> <td>In Kremen v. Agrest25 Moystyn J. summarized the applicable principles in the</td> </tr> <tr> <td>29</td> <td>following way:</td> </tr> <tr> <td>30</td> </tr> <tr> <td>31</td> <td>32</td> <td>In Granatino v Radmacher [2011] AC 534 the Supreme Court gave definitive</td> </tr> <tr> <td>guidance as to the treatment of a nuptial contract in proceedings for ancillary relief</td> </tr> <tr> <td>33</td> <td>following a dcce. The guiaent of the m</td> <td>domestic divorce contained</td> <td>56</td> <td>intectty with datc can be as jwhich is fil</td> </tr> <tr> <td>34</td> <td>delivered by I of Worthlanajority</td> <td>35</td> <td>37</td> <td>court shouf atravers rum agreemente elications</td> </tr> <tr> <td>35</td> <td>following a dcce. The guiaent of the m</td> <td>delivered by I of Worthlanajority</td> <td>35</td> <td>37</td> <td>by each papS to a nupt von of its unllows</td> </tr> <tr> <td>36</td> <td>following a dcce. The guiaent of the m</td> <td>delivered by I of Worthlanajority</td> <td>35</td> <td>37</td> <td>1) The Md give effiall apprecimpe frais to cly entere</td> </tr> <tr> <td>37</td> <td>following a dcce. The guiaent of the m</td> <td>delivered by I of Worthlanajority</td> <td>35</td> <td>37</td> <td>circumstances prevailing it would not be jair to hold the parties to their</td> </tr> <tr> <td>38</td> <td>following a dcce. The guiaent of the m</td> <td>delivered by I of Worthlanajority</td> <td>35</td> <td>37</td> <td>agreement (para 75).</td> </tr> </table> <sup>25</sup>(No. 1) Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 39 of 94 ```
```html <table> <tr> <td>1</td> <td>ii)</td> <td>In determining whether an agreement has been "freely entered into by each</td> </tr> <tr> <td>2</td> <td>party with a full appreciation of its implications" there is no absolute black</td> </tr> <tr> <td>3</td> <td>and white rule for full disclosure or independent legal advice. Rather, the</td> </tr> <tr> <td>4</td> <td>question is whether in the individual case there is a material lack of</td> </tr> <tr> <td>5</td> <td>disclosure, information or advice. Each party must have all the information</td> </tr> <tr> <td>6</td> <td>that is material to his or her decision that the agreement should govern the</td> </tr> <tr> <td>7</td> <td>financial consequences of the marriage coming to an end. An absolute rule</td> </tr> <tr> <td>8</td> <td>would only be necessary if the agreement were to be contractually binding,</td> </tr> <tr> <td>9</td> <td>but this is not the case as there is a safety-net of (un)fairness (para 69).</td> </tr> <tr> <td>10</td> <td>iii)</td> <td>The presence of any of the standard vitiating factors of duress, fraud or</td> </tr> <tr> <td>11</td> <td>misrepresentation will negate any effect the agreement might otherwise</td> </tr> <tr> <td>12</td> <td>have (para 71). Further, unconscionable conduct such as undue pressure</td> </tr> <tr> <td>13</td> <td>(falling short of duress) will likely eliminate the weight to be attached to the</td> </tr> <tr> <td>14</td> <td>agreement (ibid). Other unworthy conduct, such as exploitation of a</td> </tr> <tr> <td>15</td> <td>dominant position to secure an unfair advantage, will reduce or eliminate</td> </tr> <tr> <td>16</td> <td>the weight to be attached to the agreement (ibid). The court may take into</td> </tr> <tr> <td>17</td> <td>account a party's emotional state, and what pressures he or she was under</td> </tr> <tr> <td>18</td> <td>to agree, as well as their age and maturity, and whether either or both had</td> </tr> <tr> <td>19</td> <td>been married or been in long-term relationships before (para 72). The court</td> </tr> <tr> <td>20</td> <td>may take into account foreign elements to determine whether or not the</td> </tr> <tr> <td>21</td> <td>parties intended their agreement to be effective (para 74).</td> </tr> <tr> <td>22</td> <td>iv)</td> <td>In determining whether "in the circumstances prevailing it would not be</td> </tr> <tr> <td>23</td> <td>fair to hold the parties to their agreement":</td> </tr> <tr> <td>24</td> <td>a. The agreement cannot be allowed to prejudice the reasonable</td> </tr> <tr> <td>25</td> <td>requirements of any children of the family (para 77).</td> </tr> <tr> <td>26</td> <td>b. Respect should be accorded to the decision of a married couple as to</td> </tr> <tr> <td>27</td> <td>the manner in which their financial affairs should be regulated</td> </tr> <tr> <td>28</td> <td>particularly where the agreement addresses existing circumstances and</td> </tr> <tr> <td>29</td> <td>not merely the contingencies of an uncertain future (para 78). This is</td> </tr> <tr> <td>30</td> <td>likely to be so where the agreement seeks to protect pre-marital</td> </tr> <tr> <td>31</td> <td>property (para 79). By contrast it is less likely to be so where the</td> </tr> <tr> <td>32</td> <td>agreement leaves in the hands of one spouse rather than the other the</td> </tr> <tr> <td>33</td> <td>most part of a fortune which each spouse has played an equal role in</td> </tr> <tr> <td>34</td> <td>their different ways in creating (para 80). If the devotion of one partner</td> </tr> <tr> <td>35</td> <td>to looking after the family and the home has left the other free to</td> </tr> <tr> <td>36</td> <td>accumulate wealth, it is likely to be unfair to hold the parties to an</td> </tr> <tr> <td>37</td> <td>agreement that entitles the latter to retain all that he or she has earned</td> </tr> <tr> <td>38</td> <td>(para 81).</td> </tr> <tr> <td>39</td> <td>c. Is likely to be unfair to hold the parties to an agreement which leaves</td> </tr> <tr> <td>40</td> <td>one spouse in a predicament of real need, while the other enjoys a</td> </tr> <tr> <td>41</td> <td>need may be interpreted as</td> </tr> <tr> <td>42</td> <td>being that minimum amount required to keep a spouse from destitution.</td> </tr> <tr> <td>43</td> <td>or example, t spouse ha</td> <td>ostijll rigour-nushe was i eaess， not he</td> </tr> <tr> <td>44</td> <td>ourse of the d been inca</td> <td>ving， this mig on that he ncrests offoldent (para</td> </tr> <tr> <td>45</td> <td>F， if the claim pacitated in</td> <td>her to the flor 5， in the irmptial agree 11rning a</td> </tr> <tr> <td>46</td> <td>conarriageian the</td> <td>li， sgh well juntef the ante-em pable of ing him</td> </tr> </table>

¶ [100] In light of a number of factual findings which included that it would be grossly unfair to hold the wife to an agreement which deprived her of her fair share of a fortune to which she had, in her own way, equally contributed. Further that the agreement did not meet her needs and grossly prejudiced the needs of the children as well as that it was the product of pressure from the husband, the Learned Judge determined to accord the agreement no weight whatsoever.

¶ [101] In *KA v. MA*<sup>26</sup>, Roberts J. considered that the fact of the existence of a pre-nuptial agreement was only one element in the over-arching search for a fair outcome in that case. The Learned Judge referred with approval to the summary of the Holman J. in *Luckwell v Limata*<sup>27</sup> as to how such agreement should be approached:

¶ [67] In *Luckwell v Limata* [2014] EWHC 502 (Fam) 130 to 131, [2014] 2 FLR 168, at 198 to 199, para 130, Holman summarised the law in this way: (1) It is the court, and not the parties, that decides the ultimate question of what provision is to be made; (2) The over-arching criterion remains the search for ‘fairness’, in accordance with s 25 of the MCA 1973 as explained by the House of Lords in *Miller v Miller; McFarlane v McFarlane* [2006] UKHL 24, [2006] 2 AC 618, [2006] 2 WLR 1283, [2006] 1 FLR 1186 (ie needs, sharing and compensation). But an agreement is capable of altering what is fair, including in relation to ‘need’; (3) An agreement (assuming it is not ‘impugned’ for procedural unfairness, such as duress) should be given weight in that process, although that weight may be anything from slight to decisive in an appropriate case; (4) The weight to be given to an agreement may be enhanced or reduced by a variety of factors; (5) Effect should be given to an agreement that is entered into freely, that the could not be the den on that agreeing it wairt least a e [l; to show out is, there bur’d not pre parties to evaement. Tis cement shvai to hold the claimant] <sup>26</sup> [2018] EWHC 499 <sup>27</sup> [2014] EWHC 502 (Fam) 130 to 131, [2014] 2 FLR 168, at 198 to 199, Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 41 of 94 ```
Whether it will 'not be fair to hold the parties to the agreement' necessarily depend on the facts, but some guidance can be given: (i) A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children; (ii) Respect for autonomy, including a decision as to the manner in which their financial affairs should be regulated, may be particularly relevant where the agreement addresses the existing circumstances and not merely the contingencies of an uncertain future; (iii) There is nothing inherently unfair in an agreement making provision dealing with existing non-marital property including anticipated future receipts, and there may be good objective justifications for it, such as obligations towards family members; (iv) The longer the marriage has lasted the more likely it is that events have rendered what might have seemed fair at the time of making the agreement unfair now, particularly if the position is not as envisaged; (v) It is unlikely to be fair that one party is left 'in a predicament of real need' while the other has 'a sufficiency or more'; (vi) Where each party is able to meet his or her needs, fairness may well not require a departure from the agreement." To this succinct summary, his Lordship added a further factor which, he said, needed no citation of authority: "[132] The court must be scrupulous to avoid gender discrimination or gender bias. Of course gender may, and often does, impact heavily on outcome. If in fact a wife, in her role as mother, is the primary carer for the children, then her need for secure and suitable accommodation may outweigh that of the husband. If a wife, due to her commitments to caring for the children, is less able to work than is the husband, then that is likely to impact upon her maintenance needs. So, too, if it is a fact of the case that a wife has lower earning capacity because of gender discrimination in the relevant employment market." The Learned Judge concluded against the background of all the evidence that there had been no procedural unfairness and that the wife was fully advised and aware of the import
```html <table> <tr> <td>1</td> <td>of the agreement, that nevertheless her needs and the needs of the child of the marriage</td> </tr> <tr> <td>2</td> <td>M, meant that fairness required a departure from the agreement. The Learned Judge</td> </tr> <tr> <td>3</td> <td>accepted that the agreement should be considered in its entirety, but was of the view,</td> </tr> <tr> <td>4</td> <td>in the context of the weight to be attached to the agreement, that its principal force as</td> </tr> <tr> <td>5</td> <td>a driver in the case lay in the fact that it captured the wife's agreement to, and</td> </tr> <tr> <td>6</td> <td>acknowledgement of, the husband's clear intention that its fundamental utility lay in</td> </tr> <tr> <td>7</td> <td>the protection so far as legally permissible of his pre-marital wealth. There was also</td> </tr> <tr> <td>8</td> <td>the significant fact that the wife acknowledged the husband's wish to be reasonable in</td> </tr> <tr> <td>9</td> <td>all the circumstances”</td> </tr> <tr> <td>10</td> <td>103.</td> <td>The Learned Judge agreed with the observations of Mr. Nicholas Cusworth QC in</td> </tr> <tr> <td>12</td> <td>the case of WW. v. HW29 sitting as a deputy High Court Judge that:</td> </tr> <tr> <td>13</td> <td>“Any award to meet need, even absent the agreement in this case, is being made</td> </tr> <tr> <td>14</td> <td>from non-matrimonial assets; and here those assets were specifically protected</td> </tr> <tr> <td>15</td> <td>by the agreement which H willingly entered into. There is consequently no</td> </tr> <tr> <td>16</td> <td>obvious basis for any generosity in the interpretation of these needs.” Para 98-</td> </tr> <tr> <td>17</td> <td>100</td> </tr> <tr> <td>18</td> <td>104.</td> <td>However more recent cases, have interpreted needs more generously. In Brack v.</td> </tr> <tr> <td>20</td> <td>Brack30 Lady Justice King considered the effect of prenuptial agreements where</td> </tr> <tr> <td>21</td> <td>there has been a finding that there were no vitiating features surrounding same. The</td> </tr> <tr> <td>22</td> <td>Learned Judge stated:</td> </tr> <tr> <td>23</td> <td>“Suffice it to say that it is now common ground that in financial remedy proceedings,</td> </tr> <tr> <td>24</td> <td>where a judge has found there to be no vitiating features in relation to a prenuptial</td> </tr> <tr> <td>25</td> <td>agreement, he is entitled when applying the section 25 factors in bin ananuley (an</td> </tr> <tr> <td>26</td> <td>28 Paragraph 72.</td> </tr> <tr> <td>29</td> <td>see WW v HW (Prenuptial Agreement： Needs： Conduct) [2015] EWHC 1844 (Fam)，[2016] 2 FLR299.</td> </tr> <tr> <td>30</td> <td>[2018] EWHC，1093 at paragraph 78</td> </tr> </table> Judgment: FAM 0066/2014：DJ v BJ. Coram： Richards J. Date：05.8.2019 Page 43 of 94 ```
The Court concluded that even where there is a pre-nuptial agreement without vitiating factors, a court is obliged to consider the factors under Section 25 and this does not necessarily mean that the inevitable result is a needs based outcome. The Learned Judge stated:

¶ [101] In my judgment, the judge did fall into error in going so far as to conclude that the effect of Z v Z and Luckwell meant that the wife had inevitably "lost" her sharing claim by reason of the prenuptial agreement.

¶ [102] It is undoubtedly the case that since the Supreme Court's decision in Radmacher, and up to and including Roberts J's judgment in KA v MA in March of this year (2018), the courts at first instance have resolved cases where there is a valid prenuptial agreement which does not meet the needs of the wife by interfering with the agreement only to the extent necessary to ensure that those needs are satisfied. In doing so, the courts have honoured the sentiment in Radmacher [75] by respecting the autonomy of the parties and by giving effect to the nuptial agreement which has been freely entered into to the extent that it is fair to do so.

¶ [103] In my judgment, in the ordinary course of events, where there is a valid prenuptial agreement, the terms of which amount to the wife having contracted out of a division of the assets based on sharing, a court is likely to regard fairness as demanding that she receives a settlement that is limited to that which provides for her needs. But whilst such an outcome may be considered to be more likely than not, that does not prescribe the outcome in every case. Even where there is an effective prenuptial agreement, the court remains under an obligation to take into account all the factors found in s25(2) MCA 1973, together with a proper consideration of all the circumstances, the first consideration being the welfare of any children. Such an approach may, albeit unusually, lead the court in its search for a fair outcome, to make an order which, contrary to the terms of an agreement, provides a settlement for the wife in excess of her needs. It should also be recognised that even in a case where the court considers a needs-based approach to be fair, the court will as in KA v MA, retain a degree of latitude when it comes to deciding on the level of generosity or frugality which should appropriately be brought to the assessment of those needs."

¶ [106] How does one assess needs? In FF v. KF.31, Moystyn J. stated that in so far as the needs principle there is an a save for the ilm main 38 le which is the situationshi v related
```html <table> <tr> <td>1</td> <td>to the marriage.32 Further that in a short marriage case in assessing needs, the discretion</td> </tr> <tr> <td>2</td> <td>is particularly broad and fact sensitive33. The Learned Judge stated that the:</td> </tr> <tr> <td>3</td> <td>“main drivers in the discretionary exercise are the scale of the payer’s</td> </tr> <tr> <td>4</td> <td>wealth, the length of the marriage, the applicant’s age and health and the</td> </tr> <tr> <td>5</td> <td>standard of living, although the latter factor cannot be allowed to dominate</td> </tr> <tr> <td>6</td> <td>the exercise.”</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>107. In K.v.K34, the Court considered that it would be unjust to hold the wife to the terms</td> </tr> <tr> <td>9</td> <td>of a valid prenuptial agreement in areas other than with respect to a lump sum payment.</td> </tr> <tr> <td>10</td> <td>This in circumstances where despite a short marriage of 14 months, there was a young</td> </tr> <tr> <td>11</td> <td>child of the marriage who she would have to care for. She should therefore have</td> </tr> <tr> <td>12</td> <td>maintenance in her capacity as a mother and to enable her to live to a reasonable</td> </tr> <tr> <td>13</td> <td>standard which was commensurate with the wealth of the husband. The Court said</td> </tr> <tr> <td>14</td> <td>this:</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>“This case is in essence about D. He has my first consideration, as required by s</td> </tr> <tr> <td>17</td> <td>25(1). He must have a home where he will live with his mother, the wife. There</td> </tr> <tr> <td>18</td> <td>must be sufficient income going into the home not only to provide for the</td> </tr> <tr> <td>19</td> <td>maintenance of the child, but also for his mother. The husband must provide the</td> </tr> <tr> <td>20</td> <td>home and sufficient money properly to furnish it. The capital to provide that home</td> </tr> <tr> <td>21</td> <td>should be held in trust for that purpose with the reversion to the father. In this</td> </tr> <tr> <td>22</td> <td>context I have been referred to Tavoulareas v Tavoulareas [1998] 2 FLR 418 and</td> </tr> <tr> <td>23</td> <td>HvH(Financial Relief：Conduct) [1998] 1 FLR 971. Clearly in view of what I</td> </tr> <tr> <td>24</td> <td>have said above, it would not be right for the reversion to be to the mother. That</td> </tr> <tr> <td>25</td> <td>would be tantamount to ordering her a lump sum. I have no doubt that in the future</td> </tr> <tr> <td>26</td> <td>the husband will adequately provide for his son, D. There is nothing exceptional</td> </tr> <tr> <td>27</td> <td>about this case which persuades me that the reversion should be to D. The detailed</td> </tr> <tr> <td>28</td> <td>terms of the trust can be considered later. The trust should come to an end on D</td> </tr> <tr> <td>29</td> <td>finishing full-time education. The wife and D should be able to move to another</td> </tr> <tr> <td>30</td> <td>property on the same trusts. The husband seeks to restrict her as to one move</td> </tr> <tr> <td>31</td> <td>during the trust period. I consider that to be unreasonable. On the termination of the</td> </tr> <tr> <td>32</td> <td>trust period, the wife will be liberated to move and the husband will be free to</td> </tr> <tr> <td>33</td> <td>move and by agreement in any case there to apply to the Court for any issues</td> </tr> <tr> <td>34</td> <td>to be resolved.”</td> </tr> </table> <sup>32</sup> [2017] EWHC 1093 - paragraph 18 <sup>33</sup> [2017] EWHC 1093 - paragraph 19 <sup>34</sup> [2003] 1 FLR 120 Judgment：FAM 0066/2014：DJvBJ.Coram：Richards J.Date：05.8.2019 Page 45 of 94 ```
The Court held that the house should be purchased for the child on trust to be reverted to the husband when the trust terminated on the child attaining the age of 18 years. In *Murphy v. Murphy*<sup>35</sup>, Holman J. considered whether and for what period should maintenance payments continue. The parties had been married for a relatively short period of six years, the wife was now aged 42 and had the care of the couple's three-year-old twins. The Learned Judge considered it speculation to try to determine the level of income that the wife might earn after returning to the work force. At paragraph 35, the Learned Judge said this: > 35. What, frankly, the arguments by the husband overlook is that the having of children changes everything. Of course this wife could never have expected a "meal ticket for life" on the basis of six years of marriage and two years of cohabitation if there had been no children. Far from it, she would no doubt have continued to work at Selfridges, or in similar employment, and at the point of the breakdown of their marriage and divorce there would have been a fair capital division and a clean break and each would have gone their own way. But the fact of having children, and their obvious dependence in this particular case on their mother for their care, changes everything, as I have said. The economic impact on this wife is likely to endure not only until they leave school but, indeed, for the rest of her life." In *RE P (Child: Financial Provision)*<sup>36</sup>, Thorpe LJ in considering an application under the Children Act 1989 in circumstances where the wealth of one parent or both parents ranged from the affluent to the fabulously rich said that the recommended starting point is to decide on the home which the respondent must provide for the child during the child's minority or until further order of the court. The respondent would be entitled to the property, and the court should consider the extent of any lump sum to include furniture, fittings, and the cost of and the home. <sup>35</sup> [2014] EWHC 2263 <sup>36</sup> [2003] 2 FLR 865 Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 46 of 94
```html <table> <tr> <td>1</td> <td>followed by a reasonable budget for the mother. This should be done with a broad</td> </tr> <tr> <td>2</td> <td>brush and the discouragement of undue bickering over competing budgets. While the</td> </tr> <tr> <td>3</td> <td>mother's entitlement to an allowance as the primary carer for the children may be</td> </tr> <tr> <td>4</td> <td>checked by the absence of a claim in her own right, it is not thereby diminished.37</td> </tr> <tr> <td>5</td> <td>6</td> <td>112.</td> <td>The Court allowed the appeal of the wife and accepted that the judge at first instance</td> </tr> <tr> <td>7</td> <td>had made too low an order and that very substantial payments were required in order</td> </tr> <tr> <td>8</td> <td>to secure that the child L was bought up in circumstances which were related to the</td> </tr> <tr> <td>9</td> <td>father's current resources and standard of living. The Court stated:-</td> </tr> <tr> <td>10</td> <td>113.</td> <td>In summary I take the guiding principles from these cases to be that where there is a</td> </tr> <tr> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> <td>36</td> <td>37</td> <td>38</td> <td>39</td> <td>40</td> <td>41</td> <td>42</td> <td>43</td> <td>44</td> <td>45</td> <td>46</td> <td>47</td> <td>48</td> <td>49</td> <td>50</td> <td>51</td> <td>52</td> <td>53</td> <td>54</td> <td>55</td> <td>56</td> <td>57</td> <td>58</td> <td>59</td> <td>60</td> <td>61</td> <td>62</td> <td>63</td> <td>64</td> <td>65</td> <td>66</td> <td>67</td> <td>68</td> <td>69</td> <td>70</td> <td>71</td> <td>72</td> <td>73</td> <td>74</td> <td>75</td> <td>76</td> <td>77</td> <td>78</td> <td>79</td> <td>80</td> <td>81</td> <td>82</td> <td>83</td> <td>84</td> <td>85</td> <td>86</td> <td>87</td> <td>88</td> <td>89</td> <td>90</td> <td>91</td> <td>92</td> <td>93</td> <td>94</td> <td>95</td> <td>96</td> <td>97</td> <td>98</td> <td>99</td> <td>100</td> <td>101</td> <td>102</td> <td>103</td> <td>104</td> <td>105</td> <td>106</td> <td>107</td> <td>108</td> <td>109</td> <td>110</td> <td>111</td> <td>112</td> <td>113</td> <td>114</td> <td>115</td> <td>116</td> <td>117</td> <td>118</td> <td>119</td> <td>120</td> <td>121</td> <td>122</td> <td>123</td> <td>124</td> <td>125</td> <td>126</td> <td>127</td> <td>128</td> <td>129</td> <td>130</td> <td>131</td> <td>132</td> <td>133</td> <td>134</td> <td>135</td> <td>136</td> <td>137</td> <td>138</td> <td>139</td> <td>140</td> <td>141</td> <td>142</td> <td>143</td> <td>144</td> <td>145</td> <td>146</td> <td>147</td> <td>148</td> <td>149</td> <td>150</td> <td>151</td> <td>152</td> <td>153</td> <td>154</td> <td>155</td> <td>156</td> <td>157</td> <td>158</td> <td>159</td> <td>160</td> <td>161</td> <td>162</td> <td>163</td> <td>164</td> <td>165</td> <td>166</td> <td>167</td> <td>168</td> <td>169</td> <td>170</td> <td>171</td> <td>172</td> <td>173</td> <td>174</td> <td>175</td> <td>176</td> <td>177</td> <td>178</td> <td>179</td> <td>180</td> <td>181</td> <td>182</td> <td>183</td> <td>184</td> <td>185</td> <td>186</td> <td>187</td> <td>188</td> <td>189</td> <td>190</td> <td>191</td> <td>192</td> <td>193</td> <td>194</td> <td>195</td> <td>196</td> <td>197</td> <td>198</td> <td>199</td> <td>200</td> <td>201</td> <td>202</td> <td>203</td> <td>204</td> <td>205</td> <td>206</td> <td>207</td> <td>208</td> <td>209</td> <td>210</td> <td>211</td> <td>212</td> <td>213</td> <td>214</td> <td>215</td> <td>216</td> <td>217</td> <td>218</td> <td>219</td> <td>220</td> <td>221</td> <td>222</td> <td>223</td> <td>224</td> <td>225</td> <td>226</td> <td>227</td> <td>228</td> <td>229</td> <td>230</td> <td>231</td> <td>232</td> <td>233</td> <td>234</td> <td>235</td> <td>236</td> <td>237</td> <td>238</td> <td>239</td> <td>240</td> <td>241</td> <td>242</td> <td>243</td> <td>244</td> <td>245</td> <td>246</td> <td>247</td> <td>248</td> <td>249</td> <td>250</td> <td>251</td> <td>252</td> <td>253</td> <td>254</td> <td>255</td> <td>256</td> <td>257</td> <td>258</td> <td>259</td> <td>260</td> <td>261</td> <td>262</td> <td>263</td> <td>264</td> <td>265</td> <td>266</td> <td>267</td> <td>268</td> <td>269</td> <td>270</td> <td>271</td> <td>272</td> <td>273</td> <td>274</td> <td>275</td> <td>276</td> <td>277</td> <td>278</td> <td>279</td> <td>280</td> <td>281</td> <td>282</td> <td>283</td> <td>284</td> <td>285</td> <td>286</td> <td>287</td> <td>288</td> <td>289</td> <td>290</td> <td>291</td> <td>292</td> <td>293</td> <td>294</td> <td>295</td> <td>296</td> <td>297</td> <td>298</td> <td>299</td> <td>300</td> <td>301</td> <td>302</td> <td>303</td> <td>304</td> <td>305</td> <td>306</td> <td>307</td> <td>308</td> <td>309</td> <td>310</td> <td>311</td> <td>312</td> <td>313</td> <td>314</td> <td>315</td> <td>316</td> <td>317</td> <td>318</td> <td>319</td> <td>320</td> <td>321</td> <td>322</td> <td>323</td> <td>324</td> <td>325</td> <td>326</td> <td>327</td> <td>328</td> <td>329</td> <td>330</td> <td>331</td> <td>332</td> <td>333</td> <td>334</td> <td>335</td> <td>336</td> <td>337</td> <td>338</td> <td>339</td> <td>340</td> <td>341</td> <td>342</td> <td>343</td> <td>344</td> <td>345</td> <td>346</td> <td>347</td> <td>348</td> <td>349</td> <td>350</td> <td>351</td> <td>352</td> <td>353</td> <td>354</td> <td>355</td> <td>356</td> <td>357</td> <td>358</td> <td>359</td> <td>360</td> <td>361</td> <td>362</td> <td>363</td> <td>364</td> <td>365</td> <td>366</td> <td>367</td> <td>368</td> <td>369</td> <td>370</td> <td>371</td> <td>372</td> <td>373</td> <td>374</td> <td>375</td> <td>376</td> <td>377</td> <td>378</td> <td>379</td> <td>380</td> <td>381</td> <td>382</td> <td>383</td> <td>384</td> <td>385</td> <td>386</td> <td>387</td> <td>388</td> <td>389</td> <td>390</td> <td>391</td> <td>392</td> <td>393</td> <td>394</td> <td>395</td> <td>396</td> <td>397</td> <td>398</td> <td>399</td> <td>400</td> <td>401</td> <td>402</td> <td>403</td> <td>404</td> <td>405</td> <td>406</td> <td>407</td> <td>408</td> <td>409</td> <td>410</td> <td>411</td> <td>412</td> <td>413</td> <td>414</td> <td>415</td> <td>416</td> <td>417</td> <td>418</td> <td>419</td> <td>420</td> <td>421</td> <td>422</td> <td>423</td> <td>424</td> <td>425</td> <td>426</td> <td>427</td> <td>428</td> <td>429</td> <td>430</td> <td>431</td> <td>432</td> <td>433</td> <td>434</td> <td>435</td> <td>436</td> <td>437</td> <td>438</td> <td>439</td> <td>440</td> <td>441</td> <td>442</td> <td>443</td> <td>444</td> <td>445</td> <td>446</td> <td>447</td> <td>448</td> <td>449</td> <td>450</td> <td>451</td> <td>452</td> <td>453</td> <td>454</td> <td>455</td> <td>456</td> <td>457</td> <td>458</td> <td>459</td> <td>460</td> <td>461</td> <td>462</td> <td>463</td> <td>464</td> <td>465</td> <td>466</td> <td>467</td> <td>468</td> <td>469</td> <td>470</td> <td>471</td> <td>472</td> <td>473</td> <td>474</td> <td>475</td> <td>476</td> <td>477</td> <td>478</td> <td>479</td> <td>480</td> <td>481</td> <td>482</td> <td>483</td> <td>484</td> <td>485</td> <td>486</td> <td>487</td> <td>488</td> <td>489</td> <td>490</td> <td>491</td> <td>492</td> <td>493</td> <td>494</td> <td>495</td> <td>496</td> <td>497</td> <td>498</td> <td>499</td> <td>500</td> <td>501</td> <td>502</td> <td>503</td> <td>504</td> <td>505</td> <td>506</td> <td>507</td> <td>508</td> <td>509</td> <td>510</td> <td>511</td> <td>512</td> <td>513</td> <td>514</td> <td>515</td> <td>516</td> <td>517</td> <td>518</td> <td>519</td> <td>520</td> <td>521</td> <td>522</td> <td>523</td> <td>524</td> <td>525</td> <td>526</td> <td>527</td> <td>528</td> <td>529</td> <td>530</td> <td>531</td> <td>532</td> <td>533</td> <td>534</td> <td>535</td> <td>536</td> <td>537</td> <td>538</td> <td>539</td> <td>540</td> <td>541</td> <td>542</td> <td>543</td> <td>544</td> <td>545</td> <td>546</td> <td>547</td> <td>548</td> <td>549</td> <td>550</td> <td>551</td> <td>552</td> <td>553</td> <td>554</td> <td>555</td> <td>556</td> <td>557</td> <td>558</td> <td>559</td> <td>560</td> <td>561</td> <td>562</td> <td>563</td> <td>564</td> <td>565</td> <td>566</td> <td>567</td> <td>568</td> <td>569</td> <td>570</td> <td>571</td> <td>572</td> <td>573</td> <td>574</td> <td>575</td> <td>576</td> <td>577</td> <td>578</td> <td>579</td> <td>580</td> <td>581</td> <td>582</td> <td>583</td> <td>584</td> <td>585</td> <td>586</td> <td>587</td> <td>588</td> <td>589</td> <td>590</td> <td>591</td> <td>592</td> <td>593</td> <td>594</td> <td>595</td> <td>596</td> <td>597</td> <td>598</td> <td>599</td> <td>600</td> <td>601</td> <td>602</td> <td>603</td> <td>604</td> <td>605</td> <td>606</td> <td>607</td> <td>608</td> <td>609</td> <td>610</td> <td>611</td> <td>612</td> <td>613</td> <td>614</td> <td>615</td> <td>616</td> <td>617</td> <td>618</td> <td>619</td> <td>620</td> <td>621</td> <td>622</td> <td>623</td> <td>624</td> <td>625</td> <td>626</td> <td>627</td> <td>628</td> <td>629</td> <td>630</td> <td>631</td> <td>632</td> <td>633</td> <td>634</td> <td>635</td> <td>636</td> <td>637</td> <td>638</td> <td>639</td> <td>640</td> <td>641</td> <td>642</td> <td>643</td> <td>644</td> <td>645</td> <td>646</td> <td>647</td> <td>648</td> <td>649</td> <td>650</td> <td>651</td> <td>652</td> <td>653</td> <td>654</td> <td>655</td> <td>656</td> <td>657</td> <td>658</td> <td>659</td> <td>660</td> <td>661</td> <td>662</td> <td>663</td> <td>664</td> <td>665</td> <td>666</td> <td>667</td> <td>668</td> <td>669</td> <td>670</td> <td>671</td> <td>672</td> <td>673</td> <td>674</td> <td>675</td> <td>676</td> <td>677</td> <td>678</td> <td>679</td> <td>680</td> <td>681</td> <td>682</td> <td>683</td> <td>684</td> <td>685</td> <td>686</td> <td>687</td> <td>688</td> <td>689</td> <td>690</td> <td>691</td> <td>692</td> <td>693</td> <td>694</td> <td>695</td> <td>696</td> <td>697</td> <td>698</td> <td>699</td> <td>700</td> <td>701</td> <td>702</td> <td>703</td> <td>704</td> <td>705</td> <td>706</td> <td>707</td> <td>708</td> <td>709</td> <td>710</td> <td>711</td> <td>712</td> <td>713</td> <td>714</td> <td>715</td> <td>716</td> <td>717</td> <td>718</td> <td>719</td> <td>720</td> <td>721</td> <td>722</td> <td>723</td> <td>724</td> <td>725</td> <td>726</td> <td>727</td> <td>728</td> <td>729</td> <td>730</td> <td>731</td> <td>732</td> <td>733</td> <td>734</td> <td>735</td> <td>736</td> <td>737</td> <td>738</td> <td>739</td> <td>740</td> <td>741</td> <td>742</td> <td>743</td> <td>744</td> <td>745</td> <td>746</td> <td>747</td> <td>748</td> <td>749</td> <td>750</td> <td>751</td> <td>752</td> <td>753</td> <td>754</td> <td>755</td> <td>756</td> <td>757</td> <td>758</td> <td>759</td> <td>760</td> <td>761</td> <td>762</td> <td>763</td> <td>764</td> <td>765</td> <td>766</td> <td>767</td> <td>768</td> <td>769</td> <td>770</td> <td>771</td> <td>772</td> <td>773</td> <td>774</td> <td>775</td> <td>776</td> <td>777</td> <td>778</td> <td>779</td> <td>780</td> <td>781</td> <td>782</td> <td>783</td> <td>784</td> <td>785</td> <td>
```html <table> <tr> <td>1</td> <td>cases, that interference would take the form of ensuring that the strands of need and</td> </tr> <tr> <td>2</td> <td>compensation are satisfied. It is with respect to the strand of sharing that the court is</td> </tr> <tr> <td>3</td> <td>least likely to interfere with or vary an agreement.</td> </tr> <tr> <td>4</td> <td>The submissions as to the Pre-nuptial Agreement</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>114. Counsel on behalf of the wife submitted that on a plain and principled interpretation</td> </tr> <tr> <td>7</td> <td>of the Agreement, by paragraph 4, the parties elected to use the duration of the</td> </tr> <tr> <td>8</td> <td>marriage as the start and end point for the period of time when assets would be</td> </tr> <tr> <td>9</td> <td>accumulated. They did not, despite having legal advice, use the duration of the</td> </tr> <tr> <td>10</td> <td>relationship. Counsel further urges that the parties in agreeing that all resources</td> </tr> <tr> <td>11</td> <td>generated up to the dissolution of the marriage are joint property and are to be shared</td> </tr> <tr> <td>12</td> <td>equally have contracted out of the usual interpretations (as per McTaggart v.</td> </tr> <tr> <td>13</td> <td>McTaggart) and thus that this is an exception to the general rule.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>115. The submission on behalf of the husband is that the words in the event of dissolution</td> </tr> <tr> <td>16</td> <td>or annulment of the marriage refer to timing while the words during the marriage</td> </tr> <tr> <td>17</td> <td>are the words which must be interpreted for the purpose of the Agreement. He</td> </tr> <tr> <td>18</td> <td>submitted that those words bear a particular meaning in the context of family law by</td> </tr> <tr> <td>19</td> <td>reference to the cases of Miller v. Miller; McFarlane v. McFarlane39 and the local</td> </tr> <tr> <td>20</td> <td>case of McTaggart v. McTaggart which specifically provide that the line is to be</td> </tr> <tr> <td>21</td> <td>drawn as at the date of final separation. He invites the Court to give those words the</td> </tr> <tr> <td>22</td> <td>est usual interp the context</td> </tr> <tr> <td>23</td> <td>up of final separ</td> </tr> <tr> <td>24</td> <td>abli shed andretation withroceedings b</td> </tr> <tr> <td>23</td> <td>to the point oration.</td> </tr> </table> <sup>39</sup> Supra Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 48 of 94

¶ [116] Counsel places reliance on the judgement of Lord Nicholls in the case of Miller v. Miller; McFarlane and the particular section as follows: "The statute requires the court to have regard to all the circumstances of the case. One of the circumstances is that there is a real difference, a difference of source, between (1) property acquired during the marriage otherwise than by inheritance or gift, sometimes called the marital acquest but more usually the matrimonial property, and (2) other property". [Emphasis added by Counsel]

¶ [117] Counsel notes also by way of explanation that "the former is the financial product of the parties' common endeavour, the latter is not".

¶ [118] The submission then is that in using the words "during the marriage", the Learned Judge was referring to the period prior to separation and further that no alternative interpretation is afforded as such would not lead to the necessary corollary that property acquired during this period was the product of "common endeavour". The argument goes a step further. It is that the effect of this is that the ordinary words "during the marriage" used by the Learned Judge in the course of a discussion as to matrimonial and non-matrimonial property now bear the specific meaning of marriage up to the date of separation.

¶ [119] Counsel then points to the cases of McTaggart v. McTaggart in which it was stated: "Property acquired prior to the date of final separation (at least if acquired during the course of the marriage) is likely to be the product of common endeavour: property acquired after that date (unless it can be said to be the fruits of pre-separation property) is much less likely to be the product of common endeavour"40 40 Supra — paragraph 56 Judgment: FAM 0066/2014; DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 49 of 94

¶ [120] Counsel also drew the Court's attention to cases dealing with contractual interpretation in particular, the case of **Investors Compensation Scheme Ltd. v. West Bromwich Building Society**<sup>41</sup> and to the following summary of the salient principles: **(1)** Interpretation is the ascertainment of the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract. **(2)** The background was famously referred to by Lord Wilberforce as the "matrix of fact", but this phrase is, if anything, an understated description of what the background may include. Subject to the requirement that it should have been reasonably available to the parties and to the exception to be mentioned next, it includes absolutely anything which would have affected the way in which the language of the document would have been understood by a reasonable man. **(3)** The law excludes from the admissible background the previous negotiations of the parties and their previous declarations of subjective intent... **(4)** The meaning which a document (or any other utterance) would convey to a reasonable man is not the same thing as the meaning of its words. The meaning of words is a matter of dictionaries and grammars; the meaning of the document is what the parties using the words against the relevant background would reasonably have been understood to mean. The background may not merely enable the reasonable man to choose between the possible meaning of words which are ambiguous but even (as occasionally happens in ordinary life) to conclude that the parties must, for whatever reason, have used the wrong words or syntax... **(5)** The "rule that words should be given their 'natural and ordinary meaning'" reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. Lord Diplock made this point more vigorously when he said in Antaios Compania Naviera S.A. v Salen Rederierna A.B [1985] A.C. 191 "if detailed semantic analysis of words in commercial context is going to lead to business nonsense, to leasional that it must be nonsense." <sup>41</sup> [1998] 1 WLR 896 Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 50 of 94

¶ [121] He submitted that in this case the relevant background information is the particular meaning of the words "during the marriage" in the context of distribution of property and that in light of this background information, the words would reasonably have been understood as bearing the meaning urged by the husband. It was further submitted that a reasonable person in the context of this case is likely to conclude that in using the words "during the marriage" as distinct from more clear words such as in the event of an irretrievable breakdown of the marriage, used the wrong words in the sense that they are not as clear and unambiguous as ideally would have been the case.

¶ [122] Finally on this aspect, Counsel submitted that it is of importance that "the law does not attribute to the parties an intention which they plainly could not have had". It is argued that in all of the circumstances, the evidence strongly indicates that the parties did not intend the extraordinary consequence that post separation assets should be equally distributed between the parties, notwithstanding that such assets are clearly not the "fruit of common endeavour".

¶ [123] He urges that the clear and general intent of the Agreement is to ensure, first that the assets of both parties, but in particular those of the husband as the economically more advantaged party, are protected. He urges that it is not sensibly possible to argue that the joint intention was that, following final separation and the leading of entirely separate lives (in the husband's case with a new partner and baby to maintain), assets gained exclusively by the endeavour of a particular party were to continue to be provided equally. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019
```html <table> <tr> <td>1</td> <td>124.</td> <td>In support of this submission Counsel also relied on the case of Shore v. Wilson42 in</td> </tr> <tr> <td>2</td> <td>particular on paragraph 566 of that judgement which states that in endeavoring to</td> </tr> <tr> <td>3</td> <td>ascertain the true interpretation of an instrument, where there is doubt as to the true</td> </tr> <tr> <td>4</td> <td>sense and meaning of the words, same may be investigated including looking at</td> </tr> <tr> <td>5</td> <td>evidence outside of the agreement in order to determine the true intention of the</td> </tr> <tr> <td>6</td> <td>parties. He submits that the evidence outside of the instrument itself is in this case the</td> </tr> <tr> <td>7</td> <td>context of matrimonial proceedings and the leading cases cited.</td> </tr> <tr> <td>8</td> <td>9</td> <td>125.</td> <td>It is noted however that the statement in that case to which he refers is expressed as an</td> </tr> <tr> <td>10</td> <td>exception to the general rule. The general rule is that where the words of any written</td> </tr> <tr> <td>11</td> <td>instrument are free from ambiguity, and external circumstances do not create a doubt</td> </tr> <tr> <td>12</td> <td>as to the proper application of the words, the instrument is always to be construed</td> </tr> <tr> <td>13</td> <td>according the strict, plain and common sense meaning of the words themselves.</td> </tr> <tr> <td>14</td> <td>15</td> <td>126.</td> <td>Additionally, Counsel references the case of Ford v. Beech43 in which it was held that:</td> </tr> <tr> <td>16</td> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>127.</td> <td>Counsel also drew attention to Robertson v French:44</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, constru</td> <td>he, 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```html <table> <tr> <td>1</td> <td>have generally in respect to the subject matter, as by the known usage of trade, or</td> </tr> <tr> <td>2</td> <td>the like, acquired a peculiar sense distinct from the popular sense of the same words;</td> </tr> <tr> <td>3</td> <td>or unless the context evidently points out that they must in the particular instances,</td> </tr> <tr> <td>4</td> <td>and in order to effectuate the immediate intention of the parties to that contract, be</td> </tr> <tr> <td>5</td> <td>understood in some other special and peculiar sense".</td> </tr> <tr> <td>6</td> </tr> <tr> <td>7</td> </tr> <tr> <td>8</td> <td>Assessment of the Pre-Nuptial Agreement</td> </tr> <tr> <td>9</td> <td>Vitiating Factors</td> </tr> <tr> <td>10</td> <td>128.</td> <td>The first stage is to consider whether there are circumstances which amount to vitiating</td> </tr> <tr> <td>11</td> <td>factors, which are attendant upon the preparation and signing of the Agreement which</td> </tr> <tr> <td>12</td> <td>would make it unsafe to have regard to or give any weight to it, irrespective of its</td> </tr> <tr> <td>13</td> <td>meaning.</td> </tr> <tr> <td>14</td> </tr> <tr> <td>15</td> <td>129.</td> <td>In this case, neither party challenges its validity. There is no evidence suggestive that</td> </tr> <tr> <td>16</td> <td>either party was subjected to duress, or that there was any fraud or misrepresentation.</td> </tr> <tr> <td>17</td> <td>Neither is there any evidence of any undue pressure falling short of duress which</td> </tr> <tr> <td>18</td> <td>operated on the mind of either party and in particular on the party in the less dominant</td> </tr> <tr> <td>19</td> <td>position. There is no evidence that the husband sought to exploit his position so as to</td> </tr> <tr> <td>20</td> <td>secure an unfair advantage over the wife. Both parties had independent legal advice</td> </tr> <tr> <td>21</td> <td>on the draft Agreement. The matter does not appear to have been rushed. Drafts were</td> </tr> <tr> <td>22</td> <td>exchanged beginning on the 20th December 2011 when the husband's Attorney</td> </tr> <tr> <td>23</td> <td>produced the first draft. Other drafts followed and the wedding was postponed pending</td> </tr> <tr> <td>24</td> <td>the resolution of the Agreement. No issues as to the inadequacy of disclosure have</td> </tr> <tr> <td>25</td> <td>be here is every the parties</td> <td>ar</td> <td>the Agree</td> </tr> <tr> <td>26</td> <td>were aware</td> <td>de in a positio</td> <td>ecision asem</td> </tr> <tr> <td>27</td> <td>en raised. Ty indication of what they</td> <td>tha were</td> <td>ing and wer</td> <td>n to mak d</td> <td>ent.</td> </tr> <tr> <td>28</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 53 of 94 ```
```html <table> <tr> <td>1</td> <td>130.</td> <td>It follows that in the absence of vitiating factors, the Court must seek to give weight</td> </tr> <tr> <td>2</td> <td>to the Agreement, unless it would be unfair to do so.</td> </tr> <tr> <td>3</td> <td>Meaning of the Agreement - Paragraph 4 - Joint Assets</td> </tr> <tr> <td>4</td> <td>131.</td> <td>I have given careful consideration to all the submissions of both Counsel in respect of</td> </tr> <tr> <td>5</td> <td>paragraph 4 of the Agreement. It is accepted that the words "during the marriage" in</td> </tr> <tr> <td>6</td> <td>the case of Miller v. Miller， McFarlane v. McFarlane is used in the context of the</td> </tr> <tr> <td>7</td> <td>case to mean the period prior to breakdown of the marriage. Indeed at paragraph 91 of</td> </tr> <tr> <td>8</td> <td>the judgement the Learned judge stated：</td> </tr> <tr> <td>9</td> <td>132.</td> <td>A third feature is that the high level of the husband's earnings after the</td> </tr> <tr> <td>10</td> <td>breakdown of the marriage was the result of the parties' joint endeavours</td> </tr> <tr> <td>11</td> <td>at the earlier stages of his professional career. The wife gave up her career</td> </tr> <tr> <td>12</td> <td>to devote herself to making a home for them both and for the children. As</td> </tr> <tr> <td>13</td> <td>Bennett J noted, the husband was able to reap the benefits of the wife's</td> </tr> <tr> <td>14</td> <td>contribution not just during the marriage. He continued to do so after the</td> </tr> <tr> <td>15</td> <td>separation and after the divorce."</td> </tr> <tr> <td>16</td> <td>132.</td> <td>It is further accepted that there is a clear line of authority including from the Cayman</td> </tr> <tr> <td>18</td> <td>Islands Court of Appeal which identifies the nature of matrimonial property to be</td> </tr> <tr> <td>19</td> <td>property which is the product of the parties common endeavor and thus that property</td> </tr> <tr> <td>20</td> <td>acquired after the date of separation is unlikely to be a product of such common</td> </tr> <tr> <td>21</td> <td>endeavor unless it is property into which matrimonial property can be traced.</td> </tr> <tr> <td>22</td> <td>Matrimonial property has a particular and specific meaning in the context of family</td> </tr> <tr> <td>23</td> <td>law. However it is unclear whether the words "during the marriage" have a particular</td> </tr> <tr> <td>24</td> <td>and meaning such they are used</td> </tr> <tr> <td>25</td> <td>in any doc</td> </tr> <tr> <td>26</td> <td>specialized in that when en ment in a</td> </tr> <tr> <td>27</td> <td>proceedings of the marriage up to the point of separation.</td> </tr> <tr> <td>28</td> <td>respectively</td> </tr> <tr> <td>29</td> <td>Coram: Richards J. Date：05.8.2019</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>133.</td> <td>Counsel on behalf of the husband submitted that the Agreement is to be interpreted in</td> </tr> <tr> <td>2</td> <td>the light of the background knowledge reasonably available to the parties. Thus that it</td> </tr> <tr> <td>3</td> <td>should be interpreted in light of background legal knowledge that property rights</td> </tr> <tr> <td>4</td> <td>accrue as at the date of separation and not at the date of dissolution of marriage. The</td> </tr> <tr> <td>5</td> <td>converse argument is a reasonable one, that this is an Agreement which was prepared</td> </tr> <tr> <td>6</td> <td>by Attorneys who one would have expected to clearly define the wishes of the parties</td> </tr> <tr> <td>as to the date of accrual. It is less than believable that they would have left such an</td> </tr> <tr> <td>10</td> <td>important distinction to be construed and inferred as part of some background</td> </tr> <tr> <td>knowledge which they must have known that the parties themselves, one of whom was</td> </tr> <tr> <td>not an Attorney, may not have had. First and foremost this was an Agreement which</td> </tr> <tr> <td>11</td> <td>needed to be clear for the parties themselves.</td> </tr> <tr> <td>12</td> </tr> <tr> <td>13</td> <td>134.</td> <td>The difficulty which the husband's argument faces as a first and general point is that</td> </tr> <tr> <td>14</td> <td>it must be accepted that it was entirely open to the parties to make the choice to act</td> </tr> <tr> <td>15</td> <td>other than in accordance with the background context suggested by Counsel and to</td> </tr> <tr> <td>16</td> <td>choose their own course. Otherwise they could simply have left the decision to be</td> </tr> <tr> <td>17</td> <td>made by the Court in the usual way.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>135.</td> <td>Counsel for the husband also submitted that the fact that the words in the draft</td> </tr> <tr> <td>20</td> <td>agreement were never altered indicates that no one gave any specific thought to it.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>136.</td> <td>The wife's point was that as an accountant of long standing, the husband has a certain</td> </tr> <tr> <td>23</td> <td>leercial sophis</td> <td>24</td> <td>said to be the</td> <td>ng of the</td> <td>claim not</td> <td>rst</td> <td>partus can notol</td> <td>is e true meaniot</td> <td>ood what</td> </tr> <tr> <td>vel of commication a</td> <td>nd</td> <td>nd</td> <td>agrapb.</td> <td>ave unde</td> </tr> <tr> <td>25</td> </tr> </table> Judgment: FAM 0066/2014: DJv BJ. Coram: Richards J. Date: 05.8.2019 Page 55 of 94 ```
```html <table> <tr> <td>1</td> <td>137.</td> <td>Counsel for the husband urged that in deciding what their intention was, the court</td> </tr> <tr> <td>2</td> <td>should consider the credibility of the parties on this issue. He pointed to various</td> </tr> <tr> <td>3</td> <td>aspects of the wife’s evidence where he asserted that she had been less than candid.</td> </tr> <tr> <td>4</td> <td>While I accept that there were some questions in particular where she sought to put</td> </tr> <tr> <td>5</td> <td>forward an underpayment on the part of the husband on the basis of a salary calculation</td> </tr> <tr> <td>6</td> <td>that claimed he was earning a million dollars, I did not consider that this aspect could</td> </tr> <tr> <td>7</td> <td>be resolved entirely on an assessment of credibility. This is because there was no</td> </tr> <tr> <td>8</td> <td>evidence as to discussions between advisors or indeed the parties themselves as to</td> </tr> <tr> <td>9</td> <td>what was meant. Each party gave evidence as to their independent understanding of</td> </tr> <tr> <td>10</td> <td>the meaning of paragraph 4.</td> </tr> <tr> <td>11</td> <td>138.</td> <td>The significant point is that this is not a case where either party claims to have</td> </tr> <tr> <td>12</td> <td>discussed the specific issue with the other and to have arrived at a mutual</td> </tr> <tr> <td>13</td> <td>understanding. Each party speaks to having a particular understanding independent of</td> </tr> <tr> <td>14</td> <td>the other which is different from the others’. Privilege was not waived and there is no</td> </tr> <tr> <td>15</td> <td>evidence placed before the Court as to the advice given to either party on the meaning</td> </tr> <tr> <td>16</td> <td>of these words.</td> </tr> <tr> <td>17</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>139.</td> <td>I have to say that in so far as the limited evidence went, I was less inclined to believe</td> </tr> <tr> <td>20</td> <td>the husband. This was because of the way he responded to the questions as to whether</td> </tr> <tr> <td>21</td> <td>or not he had been advised by his Attorneys as to the meaning of that paragraph. In</td> </tr> <tr> <td>22</td> <td>evidence when he spoke to his understanding of paragraph 4 of the Agreement. he</td> </tr> <tr> <td>23</td> <td>seemed to wav aying the</td> <td>Atre confirmant an</td> <td>erstandinnir</td> <td>from his</td> </tr> <tr> <td>24</td> <td>torneys before g that it wund ing had d f</td> <td>g of the</td> </tr> <tr> <td>25</td> <td>paragraph. I did find this to be a curious answer. In this regard I accept the submission</td> </tr> <tr> <td>26</td> <td>of Counsel on behalf of the wife that when he said that he understood the phrase</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 56 of 94 ```
```html <table> <tr> <td>1</td> <td>“during the marriage” in the sense expounded by Lord Nicholls in the case of Miller</td> </tr> <tr> <td>2</td> <td>v. Miller, McFarlane v. McFarlane, that this is not likely to be true given that he also</td> </tr> <tr> <td>3</td> <td>says that he had no discussion with his Attorney about it and was not informed about</td> </tr> <tr> <td>4</td> <td>it.</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>140. The husband asked the Court to consider that it is inconceivable that had he been aware</td> </tr> <tr> <td>7</td> <td>of the true import of the Agreement that he would have signed it in its current form.</td> </tr> <tr> <td>8</td> <td>Overall from his evidence, the sense I had was that the truth lies somewhere in</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>11</td> <td>12</td> <td>13</td> </tr> <tr> <td>14</td> <td>15</td> <td>16</td> <td>17</td> <td>18</td> <td>19</td> <td>20</td> <td>21</td> <td>22</td> <td>23</td> <td>24</td> <td>25</td> <td>26</td> </tr> <tr> <td>27</td> <td>28</td> <td>29</td> <td>30</td> <td>31</td> <td>32</td> <td>33</td> <td>34</td> <td>35</td> <td>36</td> <td>37</td> <td>38</td> <td>39</td> <td>40</td> <td>41</td> <td>42</td> <td>43</td> <td>44</td> <td>45</td> <td>46</td> <td>47</td> <td>48</td> <td>49</td> <td>50</td> <td>51</td> <td>52</td> <td>53</td> <td>54</td> <td>55</td> <td>56</td> <td>57</td> <td>58</td> <td>59</td> <td>60</td> <td>61</td> 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```html <table> <tr> <td>1</td> <td>about financial matters and precise about asset calculations, that it is hardly believable</td> </tr> <tr> <td>2</td> <td>that he would have understood the Agreement in terms of a background meaning and</td> </tr> <tr> <td>3</td> <td>not have insisted that his lawyers make this abundantly clear in the Agreement or at</td> </tr> <tr> <td>4</td> <td>the very least discussed it with his wife. This is particularly so given that the various</td> </tr> <tr> <td>5</td> <td>references to a “Date of Judicial Separation” and one to “Date of Separation” within</td> </tr> <tr> <td>6</td> <td>the document must at least have raised the specter that such a date was a possible end</td> </tr> <tr> <td>7</td> <td>point. The onus was on him to clarify matters since the Agreement was being prepared</td> </tr> <tr> <td>8</td> <td>at his urging.</td> </tr> <tr> <td>9</td> <td>10</td> <td>141.</td> <td>In cross examination, the husband was asked by Counsel whether the man in the street</td> </tr> <tr> <td>11</td> <td>would say that he is still married and he replied that the man in the street would say</td> </tr> <tr> <td>12</td> <td>that he was separated. He was then asked the question, are you still married and agreed</td> </tr> <tr> <td>13</td> <td>that the answer to this must be yes.</td> </tr> <tr> <td>14</td> <td>142.</td> <td>It is because the words are open to two possible meanings that care must be taken to</td> </tr> <tr> <td>15</td> <td>assess what the parties actually said and what they meant. It follows that in the absence</td> </tr> <tr> <td>16</td> <td>of evidence as to discussions as to an agreed meaning or understanding or evidence as</td> </tr> <tr> <td>17</td> <td>to the agreed intention, regard must first be had to the words used in the Agreement,</td> </tr> <tr> <td>18</td> <td>the context of that Agreement and the entirety of the Agreement.</td> </tr> <tr> <td>19</td> <td>20</td> <td>143.</td> <td>The argument that this could not have been what was intended must take second place</td> </tr> <tr> <td>21</td> <td>to an assessment of what the parties stated their intentions to be in the Agreement.</td> </tr> <tr> <td>22</td> <td>Frcities cited by husband. th</td> <td>25</td> <td>i. Is the o the tru</td> </tr> <tr> <td>23</td> <td>om the author Counsel fonuestions em</td> <td>24</td> <td>se</td> </tr> <tr> <td>26</td> <td>27</td> <td>ii. What is the construction which the words admit?</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 58 of 94 ```
```markdown ### iii. Is there clear evidence of the intention of the parties from the whole of the agreement?

¶ [144] I thought the construction placed on the words in the course of submissions made on behalf of the husband to be a little strained. It required separating the two components of the sentence and inserting background knowledge. In closing submissions Counsel submitted that "the reasonable person would be likely to consider that a less ambiguous phrase should have been used such as irretrievable breakdown of the marriage and that it may well have been that an error crept in." He prayed in aid "sloppy drafting" but said that nevertheless the intent was crystal clear and the extraordinary consequence was not intended.

¶ [145] In my view, on a plain reading of paragraph 4 of the Agreement, the 'trigger' for sharing is an act of judicial pronouncement, either of dissolution of the marriage or judicial separation. It is not the date of separation of the parties.

¶ [146] The whole of the Agreement was then considered in order to determine and test whether there is any room for ambiguity, giving the usual meanings which would apply. Paragraph 6(c) of the Agreement dealing with joint assets is in my view definitive. It provides that in the event that the marriage is terminated in one of three ways, decree of divorce, annulment or judicial separation within the first seven years of the marriage their financial claims will be defined and limited as follows: accounts, other assets, and investment accounts in accordance with savings as any ban or "Any's, property above to be closed and the balance in such accounts or other investments will be divided equally between them, or in such other proportion as they may have otherwise agreed in writing. In the event that any such ```
```markdown # Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 60 of 94

¶ [1] accounts are overdrawn, any such liability will be discharged in equal shares. (emphasis added).

¶ [5] From this it appears clear that it is at the point of one or other of the three stated methods of termination, that there is to be closure of bank accounts and investment accounts and the proceeds thereof are to be shared equally.

¶ [8] Counsel for the wife pointed to this paragraph as one example of an instance when different modes of termination are referenced to include a separation.

¶ [11] It is noted also that paragraph 6(g) appears to provide for a limitation on joint division in respect of debts, these are to remain solely the responsibility of the individual parties as at the "Date of Separation" with the exception of debts incurred due to medical expenses of either A or B or any child of the marriage. It is unclear to what date this refers. The most likely reference is that as it is subsumed within the paragraph headed provision upon divorce, annulment or judicial separation, the reference is meant to be to the date of judicial separation rather than separation between the parties, although this is not stated.

¶ [21] Curiously, the paragraph immediately following, (paragraph 6 (h)) dealing with consent order, refers to judicial separation. It states that within proceedings for divorce, nullity or judicial separation, A and B agree to seek an order by consent embodying the terms set out in the Agreement.

¶ [25] If (g) refers to j then it remains within the context of paragraph 6(udicial sense one of the meaning of paragraph 4. Alternatively if this was a carefully considered omission of the word ```
```html <table> <tr> <td>1</td> <td>“judicial” and it refers to separation other than judicial separation, then even more so,</td> </tr> <tr> <td>2</td> <td>it would support rather than alter the intended meaning and context of paragraph 4.</td> </tr> <tr> <td>3</td> <td>4</td> <td>152.</td> <td>I think the key point from this is the factor that the issue of separation was considered.</td> </tr> <tr> <td>5</td> <td>It appears that for the purpose of paragraphs 4 and 6(c) dealing with joint assets, no</td> </tr> <tr> <td>6</td> <td>one sought to address what would be the result if the parties separated prior to judicial</td> </tr> <tr> <td>7</td> <td>means of termination of the marriage or to state what was to happen to their assets in</td> </tr> <tr> <td>8</td> <td>the intervening period. A specific decision appears to have been made in both</td> </tr> <tr> <td>9</td> <td>paragraphs 4 and 6 to use the book end of a judicial pronouncement as the defining</td> </tr> <tr> <td>10</td> <td>date for the division of assets.</td> </tr> <tr> <td>11</td> <td>12</td> <td>153.</td> <td>I would therefore answer the questions posed above in the following way. There</td> </tr> <tr> <td>13</td> <td>appears to be very little doubt as to the true sense and meaning of the words used. The</td> </tr> <tr> <td>14</td> <td>construction which the words in paragraph 4 admit is that during the marriage refers</td> </tr> <tr> <td>15</td> <td>to the period of the marriage until judicial pronouncement. There is clear evidence of</td> </tr> <tr> <td>16</td> <td>the intention of the parties in this regard from the whole of the Agreement.</td> </tr> <tr> <td>17</td> <td>18</td> <td>154.</td> <td>With respect to issue 2, I conclude that the plain meaning or construction of paragraph</td> </tr> <tr> <td>19</td> <td>4, is that the assets not identified as separate assets were to be shared equally between</td> </tr> <tr> <td>20</td> <td>the parties as at the date of dissolution of the marriage. I accept the submission of</td> </tr> <tr> <td>21</td> <td>Counsel for the wife, that the parties “contracted out” of the usual meaning of the</td> </tr> <tr> <td>22</td> <td>words “during the marriage” in the context of identifying what is matrimonial</td> </tr> <tr> <td>23</td> <td>property.</td> </tr> <tr> <td>24</td> <td>25</td> <td>26</td> </tr> <tr> <td>27</td> <td>28</td> <td>29</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 61 of 94 ```
Meaning of the Agreement – Paragraph 6 (e) – Child Support

¶ [155] It is convenient to consider issues 4 and 8 at this point because both deal with the interpretation of the Agreement.

¶ [156] The husband also contends that by paragraph 6(e) of the Agreement, he agreed to provide 'suitable' income provision for any child of the marriage and that suitable does not mean that he is to bear the responsibility for paying all of the costs. He urges that these should be shared based on income proportions. However the paragraph itself defines what is suitable income provision as including "any medical insurance costs, medical expenses, all educational and related costs, extra-curricular expenses and domestic assistance expenses. In my view it is also plain from this that he committed to paying for all of these expenses. The construction of this paragraph is forward looking as distinct from paragraph 3(f) which appears to refer to debts already incurred and therefore looks to the past. # Meaning of the Agreement – List of Separate Assets - Partnership Interest

¶ [157] There was a dispute between the parties as to whether the capital contributions made by the husband to the Firm as per his joining agreement should be included as joint assets. The wife contends that they should, on the basis that there are really retained earnings. The husband initially contended that they should not and referred to the List of Assets and Personal Holdings for the husband which states, "The husband's interest in the Firm is as a partner/Owner of Firm." Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 62 of 94
```html <table> <tr> <td>1</td> <td>158.</td> <td>As referenced above there was much back and forth between the parties about this.</td> </tr> <tr> <td>2</td> <td>The clarification which emerged is that the Husband in fact has no partnership interest</td> </tr> <tr> <td>3</td> <td>in the Firm. His interest is limited to his right to benefits which accrue as a partner in</td> </tr> <tr> <td>4</td> <td>the Firm. One of these benefits is the capital contributions which are made by the Firm</td> </tr> <tr> <td>5</td> <td>retaining 20% of his annual earnings. There is therefore a mis-description in the</td> </tr> <tr> <td>6</td> <td>schedule to the Agreement.</td> </tr> <tr> <td>7</td> <td>159.</td> <td>On this aspect, Counsel for the husband initially submitted that the husband was a</td> </tr> <tr> <td>8</td> <td>partner in the Firm at the time of entering into the Agreement. He had already made</td> </tr> <tr> <td>9</td> <td>capital contributions to the Firm and it must have been intended, and understood by</td> </tr> <tr> <td>10</td> <td>both parties that his interest therein was to have been properly included in the list of</td> </tr> <tr> <td>11</td> <td>separate assets. Alternatively Counsel submitted that even if it was not listed it would</td> </tr> <tr> <td>12</td> <td>nevertheless constitute a ring-fenced asset as per the definition of separate assets in</td> </tr> <tr> <td>13</td> <td>the Agreement as it was an asset acquired prior to entering into the marriage or an</td> </tr> <tr> <td>14</td> <td>increase in the value thereof. He submitted that it would be unfair to allow the wife to</td> </tr> <tr> <td>15</td> <td>exert a claim over the capital contributions.</td> </tr> <tr> <td>16</td> <td>160.</td> <td>However in cross-examination during his oral evidence, the husband appeared to give</td> </tr> <tr> <td>17</td> <td>conflicting answers as to his position on this. He initially stated that he did not accept</td> </tr> <tr> <td>18</td> <td>that the accretion of value in the Firm's capital account should be divided equally.</td> </tr> <tr> <td>19</td> <td>Then he said that he accepted that following the initial contribution to the Firm of</td> </tr> <tr> <td>20</td> <td>$175，000.00 the increase to $552，000.00 could have been occasioned either by him</td> </tr> <tr> <td>21</td> <td>pain or by not of his salary</td> </tr> <tr> <td>22</td> <td>He accepte</td> </tr> <tr> <td>23</td> <td>ying money drawing out that he cho</td> </tr> <tr> <td>24</td> <td>al se the</td> </tr> <tr> <td>25</td> <td>the Agreement. He concluded by saying that he accepted that the wife is entitled to</td> </tr> <tr> <td>26</td> <td>one half of the “top up” from $175，000 to either March 2014 or to now depending on</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 63 of 94 ```
```html <table> <tr> <td>1</td> <td>the Court's ruling as to the relevant period. He therefore concedes that these sums</td> </tr> <tr> <td>2</td> <td>should be taken into account. This would amount to $71，000.00 if the period is up to</td> </tr> <tr> <td>3</td> <td>2014 and $309，270.00 if the period is up to 2019.</td> </tr> <tr> <td>4</td> </tr> <tr> <td>5</td> <td>161. I will consider the fairness of the inclusion of this item as a separate issue.</td> </tr> <tr> <td>6</td> <td>Issue 3-Fairness of the Agreement</td> </tr> <tr> <td>7</td> <td>162. The guiding principle from the case of Radmacher v. Granatino45 is that the“Court</td> </tr> <tr> <td>8</td> <td>should give effect to a nuptial agreement that is freely entered into by each party with</td> </tr> <tr> <td>9</td> <td>a full appreciation of its implications unless in the circumstances prevailing it would</td> </tr> <tr> <td>10</td> <td>not be fair to hold the parties to their agreement.”</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>163. I must therefore go on to consider whether the construction of the Agreement which</td> </tr> <tr> <td>13</td> <td>would result in the sharing of assets beyond the point of separation of the parties is a</td> </tr> <tr> <td>14</td> <td>fair outcome in light of the entirety of the circumstances of this case. This is not the</td> </tr> <tr> <td>15</td> <td>necessarily the outcome which the Court would have reached in light of the well-</td> </tr> <tr> <td>16</td> <td>established principles. In doing so it is important to bear in mind the circumstances in</td> </tr> <tr> <td>17</td> <td>which non-matrimonial property as distinct from matrimonial property may be shared</td> </tr> <tr> <td>18</td> <td>as per the case of McTaggart v. McTaggart.</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>164. I approach the question of fairness as recommended by the authorities above. In this</td> </tr> <tr> <td>21</td> <td>case it is the economically advantaged party who raises the issue of fairness. This is</td> </tr> <tr> <td>22</td> <td>perhaps an unusual case in that the Agreement appears to have extended rather than</td> </tr> <tr> <td>23</td> <td>resights of claimant senuent sten</td> </tr> <tr> <td>stricted the ri of the le</td> </tr> <tr> <td>ou</td> </tr> <tr> <td>of cases</td> </tr> <tr> <td>14[2010] UKSC 41</td> </tr> <tr> <td>Judgment：FAM 0066/2014：DJvBJ.Coram：Richards J.Date：05.8.2019</td> </tr> <tr> <td>Page 64 of 94</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>including up to the most recent case of MB v. EB46 did not identify one with similar</td> </tr> <tr> <td>2</td> <td>issues.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>165.</td> <td>The wife urges through her Counsel that there is no unfairness where the husband</td> </tr> <tr> <td>5</td> <td>would be left with significant assets and in effect that there is nothing to suggest that</td> </tr> <tr> <td>6</td> <td>he would be left in a position of real need by the sharing of his assets in the way</td> </tr> <tr> <td>7</td> <td>contemplated by the Agreement.</td> </tr> <tr> <td>8</td> </tr> <tr> <td>9</td> <td>166.</td> <td>In considering whether the outcome arising from the construction of paragraph 4 of</td> </tr> <tr> <td>10</td> <td>the Agreement is a fair one in the circumstances of this case, there are changing</td> </tr> <tr> <td>11</td> <td>circumstances to be considered. The question is whether these serve to make its</td> </tr> <tr> <td>12</td> <td>operation unfair.</td> </tr> <tr> <td>13</td> </tr> <tr> <td>14</td> <td>167.</td> <td>The parties could not have anticipated that they would have a child with special needs</td> </tr> <tr> <td>15</td> <td>who requires long term treatments and support over an extended period beyond that of</td> </tr> <tr> <td>16</td> <td>a non-special needs child. The wife gave evidence that this was not at all anticipated.</td> </tr> <tr> <td>17</td> <td>Whether J. will be able to have an independent life is presently uncertain and will</td> </tr> <tr> <td>18</td> <td>depend on his progress through various stages. The Agreement makes no provision for</td> </tr> <tr> <td>19</td> <td>J. above the requirements of the usual child maintenance payments. It is likely that the</td> </tr> <tr> <td>20</td> <td>terms of the Agreement would have been different had this been known. The result of</td> </tr> <tr> <td>21</td> <td>this unforeseen circumstance is that in addition to the sharing of his after acquired</td> </tr> <tr> <td>22</td> <td>assets, the husband will be called upon to pay all or the majority of therapeutic costs</td> </tr> <tr> <td>23</td> <td>for J. in addition to maintenance contributions over a longer term than the anticipated</td> </tr> <tr> <td>24</td> <td>hool age per</td> </tr> <tr> <td>25</td> <td>sciod.</td> </tr> </table> ```
The Agreement makes no provision for long term housing arrangements for the child of the marriage. The only provision made is in paragraph 5 which refers to a family home purchased after the marriage and no such purchase was made. The special considerations of the child and the needs of both the child and the wife may require that specific housing arrangements be made on a long term basis for the child of the marriage. In my view this is a reasonable requirement which the Agreement ought not to prejudice. Thirdly the parties could not have anticipated the very lengthy period which has elapsed between separation and finalization of the divorce. Had they considered this, no doubt one or other of them would have raised this as an issue at the time of drafting. The issue of delay has been raised with both parties blaming the other. It has been argued that some fault lies with the husband therefore he only has himself to blame. In his oral evidence, the husband accepted that he prolonged matters by filing a cross petition and that there have been three adverse costs orders against him, one of which was in relation to not providing disclosure information as ordered. There was also a lack of timely responses to correspondence. He accepts full responsibility and said that perhaps he had not been given the best legal advice before he changed his legal team in early 2017. It is however the assertion of the husband that the wife herself has contributed to delay by changing her legal teams on three occasions with time in between to identify new counsel. The wife has also requested adjournments and has not attended inspections to identify new counsel. In short without conducting a minute, date by date analysis, fault for the delay in the first half of the proceedings is accepted by the Husband and he alleges delay on the part of the wife. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019
```html <table> <tr> <td>1</td> <td>part of the wife as to the second half of the proceedings. This is an allegation which</td> </tr> <tr> <td>2</td> <td>appears to have some factual support. Beneath the surface is the implication that the</td> </tr> <tr> <td>3</td> <td>delay was not accidental on the part of the wife. For the avoidance of doubt, I make it</td> </tr> <tr> <td>4</td> <td>clear that I do not make such a finding in either case. I did not get a sense of deliberate</td> </tr> <tr> <td>5</td> <td>delay from either party and took note of the sequence of actions which were</td> </tr> <tr> <td>6</td> <td>undertaken in each case in arriving at this view. I bear in mind that in the heat of the</td> </tr> <tr> <td>7</td> <td>moment a party may make a decision or determine on a path which in hindsight turns</td> </tr> <tr> <td>8</td> <td>out to be ill-advised or take some time in an endeavor to be as fully prepared as is</td> </tr> <tr> <td>9</td> <td>possible.</td> </tr> <tr> <td>10</td> <td>11</td> <td>172.</td> <td>The fact of delay does however raise the mirror to the uncertain and perhaps</td> </tr> <tr> <td>12</td> <td>unsatisfactory way in which the wife’s sharing claim is to be calculated according to</td> </tr> <tr> <td>13</td> <td>the Agreement. Put another way, as a method it may place a premium on delay,</td> </tr> <tr> <td>14</td> <td>because in this case the extension of the period influences the amount of the</td> </tr> <tr> <td>15</td> <td>calculation. Objectively it is open to manipulation and as a route to a calculation must</td> </tr> <tr> <td>16</td> <td>be viewed as unsatisfactory.</td> </tr> <tr> <td>17</td> <td>18</td> <td>173.</td> <td>However, while Counsel urged this point of delay on behalf of the husband, it did</td> </tr> <tr> <td>19</td> <td>strike me that both parties must have realised that a judicial pronouncement was not</td> </tr> <tr> <td>20</td> <td>going to happen immediately, they must have realised that some time would be needed</td> </tr> <tr> <td>21</td> <td>for the court process to be completed however long or short. I don’t think that in such</td> </tr> <tr> <td>22</td> <td>circumstances they can say it is unfair because it took longer than we thought it would,</td> </tr> <tr> <td>23</td> <td>even though vecify a time .</td> </tr> <tr> <td>24</td> <td>25</td> <td>26</td> <td>27</td> <td>the Agreement was only signed one day before the marriage, on the basis of which he</td> </tr> <tr> <td>urged that the parties did not have a full appreciation of the implications of the</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 67 of 94 ```
Agreement. This is not an argument of much force given that the Agreement was prepared over time with multiple drafts. The parties therefore had time for extensive review. His second point relying on *JL v. SL (Financial Remedies)*⁴⁷ was that if the Agreement provides for post separation assets to be shared it is inherently and manifestly unfair because the equal sharing principle would then be made to apply to the product of the sole endeavor of one party. This latter argument does not consider the autonomy of parties in ordering their financial affairs and their ability to “contract out” of the usual principles. There are also issues raised about the drafting of the Agreement. Counsel for the husband submitted that there is a lack of care evidenced by formatting and typographical errors (one in the important paragraph 4) and in the absence of mechanisms such as how income was to be determined. The question is whether in light of all the circumstances, it can be said that the Agreement would operate unfairly against the husband in particular with respect to the sharing provision. Counsel for the wife argues that there need be no adjustment to the terms of the Agreement in circumstances where the husband has the resources available to meet the sharing ratios with a substantial amount remaining after payment of one half. In short that it cannot be unfair where the husband is left in a situation where he still has more than enough. Indeed Counsel submits with some force that in every case where terms are that notough for one he the case it does an agreed from. i t is ; plainly nere harsh in ⁴⁷ [2015] EWHC 360 (Fam), paragraph 18-19 Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 68 of 94
```html <table> <tr> <td>1</td> <td>178.</td> <td>This submission of Counsel accords with a long line of cases some of which have been</td> </tr> <tr> <td>2</td> <td>reviewed above. In my view, the summary and general principle from the cases is that</td> </tr> <tr> <td>3</td> <td>it is not enough to say that there are changing circumstances, what must follow is an</td> </tr> <tr> <td>4</td> <td>examination of those changing circumstances which have arisen. If the effect of those</td> </tr> <tr> <td>5</td> <td>circumstances is that one party is thereby left in a situation of real need, then the Court</td> </tr> <tr> <td>6</td> <td>has a positive duty to vary the terms of the Agreement. In this case, there are additional</td> </tr> <tr> <td>7</td> <td>contributions perhaps not contemplated by the Agreement for the benefit of the child</td> </tr> <tr> <td>8</td> <td>which the husband may be required to make now and further into the future than</td> </tr> <tr> <td>9</td> <td>anticipated, (approximately $200，000.00 per annum). Having asked what the effect</td> </tr> <tr> <td>10</td> <td>upon him of this is, the answer overwhelmingly, is that, given his level of income and</td> </tr> <tr> <td>11</td> <td>resources, (some $754，400 per annum plus rental income)，it cannot be said that this</td> </tr> <tr> <td>12</td> <td>is likely to have even a modest impact upon him，far less a debilitating one. The same</td> </tr> <tr> <td>13</td> <td>practical approach and answer applies to sharing of assets which is set out in more</td> </tr> <tr> <td>14</td> <td>detail below.</td> </tr> <tr> <td>15</td> <td>179.</td> <td>I could not therefore conclude in line with the authorities that giving effect to the</td> </tr> <tr> <td>16</td> <td>Agreement as a whole will operate unfairly against him.</td> </tr> <tr> <td>17</td> <td>180.</td> <td>In light of this while I bear in mind that in accordance with section 21(d) of the Law</td> </tr> <tr> <td>18</td> <td>there is a discretion to vary the terms of the Agreement，I propose against this</td> </tr> <tr> <td>19</td> <td>background to respect the autonomy of the Parties and to consider the Agreement as</td> </tr> <tr> <td>20</td> <td>one aspect of this case in the course of considering the entirety of the circumstances</td> </tr> <tr> <td>21</td> <td>of</td> </tr> <tr> <td>22</td> <td>25</td> </tr> <tr> <td>23</td> <td>the case.</td> </tr> <tr> <td>24</td> </tr> <tr> <td>26</td> </tr> <tr> <td>27</td> </tr> <tr> <td>28</td> </tr> </table> Judgment: FAM 0066/2014：DJ v BJ. Coram：Richards J. Date：05.8.2019 Page 69 of 94 ```
Provision for the Needs of the Child

¶ [181] In the application of section 19 of the Law, the first consideration is the needs of the child of the marriage and the provision which would be in his best interests. I must therefore consider, what are J’s reasonable needs, the cost of meeting those needs and whether and how the cost of those needs should be apportioned between the parents. His immediate needs are threefold, housing, specialist therapeutic treatments, and regular maintenance. ## Housing

¶ [182] With respect to the housing, the present arrangements are that the wife has been set a rental ceiling limit of $4,400.00. The husband contributes 55% or $2,420.00 and the wife the remaining 45%. The wife has changed residences three times now since the separation. In one instance this was because the rental property which was at Britannia in the Seven Mile Beach area, was being sold. Understandably, she describes the changing of residences as having had a disruptive effect on J. In the course of his oral evidence, the husband expressed his willingness to assist J. with everything he needs. He agreed that stability of accommodation would be in J’s best interests. If there is a single meeting of the minds between the parties in this case it is that J. is in need of a stable home.

¶ [183] The husband’s secondary proposal in his Affidavit of 22nd March 2019 which he acknowledged is that to be held on a trust for J. for his long term best interests. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 70 of 94
The husband suggests that this should be within the price range $700,000.00 to $800,000.00 which would be in line with the rental payment of $4,400.00 per month which has been the approved rental standard over the period of the separation. The wife seeks a home in the range of $1.1 million. She says that the home should have sufficient room for a nanny and yard space where J. is able to run and play. She gave evidence that in the course of their marriage they had reserved a piece of land close to Camana Bay where they both worked and which is also close to J’s pediatrician. This is the land at Clipper Bay on the Seven Mile Beach corridor where the husband now proposes to build his home. He gave evidence that the plans for the home are at the conceptual stage. It will likely have some 4000 square feet in space and have room for a pool. It was suggested but not fully accepted that the possible price range on completion would be some CI$ 2.3 million. The husband’s position is that J. does not need a million dollar home in the Seven Mile Beach area. That his needs can be met by a home in the slightly lower price range which will have at least three bedrooms and yard space and which will be close to his school in George Town and to the locations for his various therapeutic activities. It is urged that the wife is motivated by a desire to live in the most prestigious property possible and that it is the needs of J., as opposed to the aspirations of the wife which are important. Counsel made the following submissions: i. J’s special needs are not provided for in the Seveido case. There is no evidence that J. needs to live in a property of this size and price. ii. In her judgment dated 14 December 2017 having heard evidence on the point, Mrs Justice Gunn (Actg.) held as follows: "I am not persuaded that J has a need for anything more than a furnished 3-bedroomed property in a reasonable neighbourhood within 30 minutes from central George Town. I find that a
```markdown reasonable rental price for such a property is CI$4400 per month. Should mother decide that more rooms are necessary for her daughter or J's nanny to live in, or for guests to stay, then she must solely bear the difference in cost for the larger property." Exhibited to the husband's Affidavit of 1st December 2017 is the sale listing for a 5 bedroom property at the Chimes in South Sound at a cost of CI $899,000.00.48 Counsel for the wife points out that the usual principle is that there should be some reasonable parity between the homes of divorced spouses. He references the case of K. v. K49 in which it was stated that "a child of parents with disparity in wealth was entitled to be brought up in circumstances which bore some relationship to the resources of the wealthier parent. The husband in cross-examination said that he was willing to meet the down payment and acquisition costs, provided the house was to be held in trust for J. He agreed that there is not much difference between the two price ranges but he did say in re-examination that he was concerned at having to bear the cost for the home at the higher price range. There is also disagreement between the parties as to whether any home rented or purchased should have room for a live-in nanny. The husband's view is that the nanny does not need to be resident on the property. Presently the nanny is not a live-in nanny and previous nannies did not live at the property. The spare rooms in the three bedroom ```
```html <table> <tr> <td>1</td> <td>191.</td> <td>Having considered both sets of submissions my view is that J. does not need a million</td> </tr> <tr> <td>dollar home. It can hardly be said with any force that because of his needs the cost of</td> </tr> <tr> <td>the home must therefore be in the higher price range. More to the point neither can it</td> </tr> <tr> <td>be said that the price range of $700，000.00 to $800，000.00 is so out of line that it bears</td> </tr> <tr> <td>no relationship to the husband’s wealth and status. This is against the background that</td> </tr> <tr> <td>on the equivalent rental budget of $4，400.00，mother was able to rent properties both</td> </tr> <tr> <td>in the South Sound and in the Seven Mile Beach areas. I also noted the price range for</td> </tr> <tr> <td>the Chimes property in South Sound， an area in which the wife had been content to</td> </tr> <tr> <td>live.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>192.</td> <td>I do feel however that it is in J’s best interests that a house be acquired with sufficient</td> </tr> <tr> <td>room for a nanny to live in， if one can be identified， a room for himself and for his</td> </tr> <tr> <td>mother. I am of the view that a live in nanny would provide him with added hands on</td> </tr> <tr> <td>care and may also give the wife greater flexibility in her work hours and in the building</td> </tr> <tr> <td>of her career. For this reason， I would therefore set the ceiling slightly higher in the</td> </tr> <tr> <td>sum of $900，000.00. Thus a range of between $800，000.00 to $900，000.00， to include</td> </tr> <tr> <td>any fixtures and furnishings which may be required.</td> </tr> <tr> <td>18</td> </tr> <tr> <td>19</td> <td>193.</td> <td>The proposal by the husband for meeting the costs of this housing is for each to meet</td> </tr> <tr> <td>the deposit and acquisition costs in proportion to their respective incomes. The wife’s</td> </tr> <tr> <td>position is that he should meet all these costs. He proposes a 10% deposit， the wife</td> </tr> <tr> <td>seeks 20% deposit. There is a significant disparity in the present asset holdings of both.</td> </tr> <tr> <td>Wken into acche far greateco：vill revert</td> </tr> <tr> <td>r level of inc</td> <td>of and the fac</td> <td>n the hom to</td> </tr> <tr> <td>23</td> <td>Then this is taunt as well ome and res</td> <td>ntribution ev</td> </tr> <tr> <td>24</td> <td>25</td> <td>26</td> <td>of the husband that his is</td> <td>him， my</td> <td>view is that it is more reasonable that he should meet the down payment and</td> </tr> <tr> <td>view is that it is more reasonable that he should meet the down payment and</td> </tr> <tr> <td>acquisition costs in full at the level that he has offered. This would be (10% deposit，</td> </tr> </table> Judgment：FAM 0066/2014：DJvBJ. Coram：Richards J. Date：05.8.2019 Page 73 of 94 ```
```html <table> <tr> <td>1</td> <td>stamp duty of 7.5% and closing costs) which would likely be in the region of</td> </tr> <tr> <td>2</td> <td>$200，000.00.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>194.</td> <td>The husband’s position is that the mortgage payments going forward should be met on</td> </tr> <tr> <td>5</td> <td>a 50/50 basis with 50% to be paid by the wife and the 50% attributable to J. to be</td> </tr> <tr> <td>6</td> <td>paid by himself and the wife. Thus the husband says that his contribution to the</td> </tr> <tr> <td>7</td> <td>mortgage payments would be limited to a portion of one half of the mortgage in</td> </tr> <tr> <td>8</td> <td>accordance with their respective incomes so that the wife would pay between 58 and</td> </tr> <tr> <td>9</td> <td>56% of the mortgage depending on her inferred or declared income. The husband</td> </tr> <tr> <td>10</td> <td>bases this proposal on the fact that the wife would be living rent free in the property.</td> </tr> <tr> <td>11</td> </tr> <tr> <td>12</td> <td>195.</td> <td>The wife counters with the assertion that she would be making payments towards a</td> </tr> <tr> <td>13</td> <td>house which would not belong to her. She points to the Agreement in paragraph 5</td> </tr> <tr> <td>14</td> <td>which requires that where there are children of the marriage, each party would</td> </tr> <tr> <td>15</td> <td>contribute to the matrimonial home in equal proportions, or in such proportions to their</td> </tr> <tr> <td>16</td> <td>financial capabilities, towards its expenses, including mortgage, insurance and</td> </tr> <tr> <td>17</td> <td>maintenance. However this aspect of the Agreement referred to a matrimonial home</td> </tr> <tr> <td>18</td> <td>purchased after the marriage and not as is the case to one which was included in the</td> </tr> <tr> <td>19</td> <td>lists of separate assets.</td> </tr> <tr> <td>20</td> </tr> <tr> <td>21</td> <td>196.</td> <td>It is noted that both parties are each in their own way focused on J’s needs. He cannot</td> </tr> <tr> <td>22</td> <td>live in a house by himself and the best option is for his mother to be present to care for</td> </tr> <tr> <td>23</td> <td>himself. Both parties should see themselves as purchasing a house for the long term</td> </tr> <tr> <td>24</td> <td>benefit of J. The wife suggests that any testamentary trusts made by the document</td> </tr> <tr> <td>25</td> <td>should be left</td> </tr> <tr> <td>26</td> <td>to J. in her will.</td> </tr> <tr> <td>27</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 74 of 94 ```
The question then is at what level her contribution should be. I hesitate to draw a direct and precise line between her present level of income and that of the husband (89% /11%) because this may lead to further litigation with every slight change of circumstances. More importantly the wife will be resident in this home and will have some benefit from it over an extended period during which if she does purchase a separate home for herself, she will be able to rent that home and have separate income towards her own mortgage payments. It is fair and reasonable because of the benefit she will have that she contributes to the mortgage of the home in which she will reside with J. and that she is a partner in the purchase. I note that the present arrangements requires her to pay 45% of total rental payments of $4,400.00 and that she has been able to afford this amount over time. I also note the very sensible offer made in her most recent open offer of 31st May 2019 which was an offer to pay 45% of the monthly mortgage payments over a 25 year period. I consider it to be fair and reasonable that the husband should pay 55% of the mortgage and the wife 45%. Maintenance and upkeep of the home should be apportioned in the same ratios. The wife also sought an increase in rental provision of $635.00. Pending the purchase of the house, the current arrangements set at $4,400.00 per month in which the husband pays 55% and the wife pays 45% should continue. Any increased rental costs should be apportioned in the same ratios. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 75 of 94
Therapeutic Treatments

¶ [201] In terms of J's therapy needs, the husband indicated in his evidence that he is willing to continue to meet the cost for all of J's therapeutic treatments to now include ABA therapy. In cross examination he said "I accept that ABA therapy should be a part of his life and I commit to paying that."

¶ [202] The therapy costs will thus increase from the approximately $5,000.00 monthly sum which is currently being paid but will likely continue to vary over time, depending on J's developmental needs and the recommendations of J's doctors and care givers. It is not possible to set a definite monthly figure. The uncertainty of what these may amount to in the future would in my view make it less than satisfactory to say that the lesser earning parent should bear a portion of an unknown cost. The husband implicitly recognizes this when he said in his Affidavit of 22<sup>nd</sup> March 2019 that while the wife should have been paying 20% of the costs of these treatments, he will agree to a reduction to 10% because had it been known that he was not going to fund all of the treatments, J might not have received some of the treatments which he has been having. In my view it cannot be in J's best interests for there to be the possibility that he may need some expensive treatment at which time, the wife at her level of income may not be able to afford her portion, when the husband may well be able to afford the entirety of it. I take the husband at his word which he gave in the witness box that he is willing to provide anything to help in J's development.

¶ [203] In greater detail, the husband has indicated that he is willing to continue to meet the costs of therapy for J and continue as he has been doing to make payments directly to
```html <table> <tr> <td>1</td> <td>the service providers. Should J's needs change over time, both parties should discuss</td> </tr> <tr> <td>2</td> <td>and agree what is needed for him.</td> </tr> <tr> <td>3</td> </tr> <tr> <td>4</td> <td>General Maintenance</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>204. For J's general maintenance the husband argues that this should be met in proportion</td> </tr> <tr> <td>7</td> <td>to their income levels. He complains that he is expected to shoulder all the financial</td> </tr> <tr> <td>8</td> <td>responsibilities for J while the wife who is a professional with the ability to earn a</td> </tr> <tr> <td>9</td> <td>good income does not. He says that there is no reason that the wife should not be able</td> </tr> <tr> <td>10</td> <td>to contribute more to these costs. He makes this complaint, despite the clear wording</td> </tr> <tr> <td>11</td> <td>of the Agreement in paragraph 6. When he says now that as a professional, earning a</td> </tr> <tr> <td>12</td> <td>six figure income, she should contribute her fair share, this was something that he well</td> </tr> <tr> <td>13</td> <td>knew at the time of the Agreement. This is not something new. She was a working</td> </tr> <tr> <td>14</td> <td>professional then and she is now. He did not insist on cost sharing at the time of and</td> </tr> <tr> <td>15</td> <td>in the wording of the Agreement. He should not do so now.</td> </tr> <tr> <td>16</td> </tr> <tr> <td>17</td> <td>205. The husband committed in the Agreement to meeting the general maintenance costs</td> </tr> <tr> <td>18</td> <td>of the children of the marriage. I accept the evidence of the wife that this was</td> </tr> <tr> <td>19</td> <td>something they discussed and to which he agreed. It is plain from the wording of the</td> </tr> <tr> <td>20</td> <td>Agreement. He agreed to and should meet the entirety of these costs.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>206. The amount of the maintenance amounts of $7， 677. 00 presently being paid for J</td> </tr> <tr> <td>23</td> <td>while the</td> </tr> <tr> <td>24</td> <td>lif eexpla</td> </tr> <tr> <td>25</td> <td>husband no doubt is concerned at the lack of stability for J. J's typical day begins at</td> </tr> </table> ```
```html <table> <tr> <td>1</td> <td>6：30am.with his mother preparing him for school and transporting him there. At the</td> </tr> <tr> <td>2</td> <td>end of his school day at about 2：30pm， the nanny would transport him from school to</td> </tr> <tr> <td>3</td> <td>his various therapeutic appointments and activities and then take him home， until his</td> </tr> <tr> <td>4</td> <td>mother gets home from work at about 6pm.</td> </tr> <tr> <td>5</td> <td>207.</td> <td>It was her evidence that the current amount is not sufficient to find someone qualified</td> </tr> <tr> <td>6</td> <td>for his special needs who would be able to take on the added role to provide him with</td> </tr> <tr> <td>7</td> <td>assistance during the school day as well as the traditional duties. The husband agreed</td> </tr> <tr> <td>8</td> <td>in his evidence that he would be prepared to provide the additional funding requested</td> </tr> <tr> <td>9</td> <td>by the wife of $1， 900.00.</td> </tr> <tr> <td>10</td> </tr> <tr> <td>11</td> <td>208.</td> <td>The husband also argues that the wife should pay a greater percentage of the utility</td> </tr> <tr> <td>12</td> <td>costs. There was extensive cross examination as to the fact that the wife has had living</td> </tr> <tr> <td>13</td> <td>in her home an employee of hers who had been living rent free for more than three</td> </tr> <tr> <td>14</td> <td>years as well as her adult daughter for a portion of that time. The daughter has now</td> </tr> <tr> <td>15</td> <td>moved out of the home and is living on her own. The husband is aggrieved by having</td> </tr> <tr> <td>16</td> <td>had to subsidize the expenses for the wife’s employee. The wife says that the employee</td> </tr> <tr> <td>17</td> <td>is a guest in the home and that overall she needs more not less， as her monthly costs</td> </tr> <tr> <td>18</td> <td>are more than the amount being received.</td> </tr> <tr> <td>19</td> </tr> <tr> <td>20</td> <td>209.</td> <td>Of the items detailed in the list below， the only item which appears unreasonably</td> </tr> <tr> <td>21</td> <td>disproportionate， is the amount for utilities， I take the husband’s point that effectively</td> </tr> <tr> <td>22</td> <td>he is meeting the costs for all the utilities for the household. A more proportionate</td> </tr> <tr> <td>23</td> <td>judgement on the basis of the ratio of 55% / 45% not</td> </tr> <tr> <td>24</td> <td>tribution movements in the ratio of 55% / 45% not</td> </tr> <tr> <td>25</td> <td>judgement on the basis of the ratio of 55% / 45% not</td> </tr> <tr> <td>26</td> <td>increase in food costs over the past 3 years， the sum of $500.00 for food was too low</td> </tr> <tr> <td>27</td> <td>and that the food costs were realistically in the region of $1000.00 per month. I take a</td> </tr> </table> Judgment: FAM 0066/2014：DJvBJ. Coram： Richards J. Date：05.8.2019 Page 78 of 94 ```
```html <table> <tr> <th>Item</th> <th>Amount</th> <th>Change</th> </tr> <tr> <td>Rent/housing</td> <td>2,420.00</td> <td>635.00</td> </tr> <tr> <td>Utilities</td> <td>1000.00</td> <td>550.00</td> </tr> <tr> <td>Food/Groceries</td> <td>500.00</td> <td>950.00</td> </tr> <tr> <td>Nanny Child care</td> <td>2000.00</td> <td>1,900.00</td> </tr> <tr> <td>Swimming, therapy classes</td> <td>240.00</td> </tr> <tr> <td>Toiletries</td> <td>250.00</td> </tr> <tr> <td>Clothes/ toys/resources</td> <td>250.00</td> </tr> <tr> <td>Co pay for medical insurance</td> <td>25.00</td> </tr> <tr> <td>Additional medical costs/pharmacy</td> <td>50.00</td> </tr> <tr> <td>Hope Haven Trips (2 per year)</td> <td>500.00</td> </tr> <tr> <td>Entertainment activities for J.</td> <td>167.00</td> </tr> <tr> <td>Travel</td> <td>275.00</td> </tr> <tr> <td>Total</td> <td>7,677.00</td> <td>9,577.00</td> </tr> </table> ``` ```latex \begin{enumerate} \item fresh look at these amounts and may come to an entirely different view. While I can see no reason why the wife should not contribute to the greater portion of the utilities and would agree that the proportions of 55/45\% is reasonable in light of the greater earnings of the husband, I would increase the amount for food correspondingly which would in effect mean that the total amount remains the same. I consider the amounts being paid as reasonable in all the circumstances together with the additional payments for a more qualified nanny. \end{enumerate} ``` ```html <table> <tr> <th>Item</th> <th>Amount</th> <th>Change</th> </tr> <tr> <td>Rent/housing</td> <td>2,420.00</td> <td>635.00</td> </tr> <tr> <td>Utilities</td> <td>1000.00</td> <td>550.00</td> </tr> <tr> <td>Food/Groceries</td> <td>500.00</td> <td>950.00</td> </tr> <tr> <td>Nanny Child care</td> <td>2000.00</td> <td>1,900.00</td> </tr> <tr> <td>Swimming, therapy classes</td> <td>240.00</td> </tr> <tr> <td>Toiletries</td> <td>250.00</td> </tr> <tr> <td>Clothes/ toys/resources</td> <td>250.00</td> </tr> <tr> <td>Co pay for medical insurance</td> <td>25.00</td> </tr> <tr> <td>Additional medical costs/pharmacy</td> <td>50.00</td> </tr> <tr> <td>Hope Haven Trips (2 per year)</td> <td>500.00</td> </tr> <tr> <td>Entertainment activities for J.</td> <td>167.00</td> </tr> <tr> <td>Travel</td> <td>275.00</td> </tr> <tr> <td>Total</td> <td>7,677.00</td> <td>9,577.00</td> </tr> </table> ``` ```latex \begin{enumerate} \item The concern expressed in his Affidavit of 23rd May 2019 by the Husband: \end{enumerate} ``` ```html <table> <tr> <th>Item</th> <th>Amount</th> <th>Change</th> </tr> <tr> <td>Rent/housing</td> <td>2,420.00</td> <td>635.00</td> </tr> <tr> <td>Utilities</td> <td>1000.00</td> <td>550.00</td> </tr> <tr> <td>Food/Groceries</td> <td>500.00</td> <td>950.00</td> </tr> <tr> <td>Nanny Child care</td> <td>2000.00</td> <td>1,900.00</td> </tr> <tr> <td>Swimming, therapy classes</td> <td>240.00</td> </tr> <tr> <td>Toiletries</td> <td>250.00</td> </tr> <tr> <td>Clothes/ toys/resources</td> <td>250.00</td> </tr> <tr> <td>Co pay for medical insurance</td> <td>25.00</td> </tr> <tr> <td>Additional medical costs/pharmacy</td> <td>50.00</td> </tr> <tr> <td>Hope Haven Trips (2 per year)</td> <td>500.00</td> </tr> <tr> <td>Entertainment activities for J.</td> <td>167.00</td> </tr> <tr> <td>Travel</td> <td>275.00</td> </tr> <tr> <td>Total</td> <td>7,677.00</td> <td>9,577.00</td> </tr> </table> ``` ```latex \begin{enumerate} \item The concern expressed in his Affidavit of 23rd May 2019 by the Husband: \end{enumerate} ```
Court consider this. I would only say that any variation in destination should be agreed between the parties. If I am wrong about the interpretation of the Agreement as requiring the husband to meet all the costs for the child of the marriage, I would still consider it fair and reasonable in the light of his monthly resources that he meets these maintenance costs at the level outlined above. All additional costs should be met by the wife. ### Duration of Periodic Payments With respect to the duration of the order for the maintenance of J, given his special circumstances, the disability proviso to section 22 of the Law is to be applied. Section 22 states:

¶ [22] (1) Where an order is made under section 21 for periodic payments such order, unless varied by the Court, shall remain in force in respect of payments to a spouse, until the remarriage or death of such spouse and in respect of payments for the benefit of a child of the marriage until the death of such child or until such child attains the age of sixteen years: Provided that in the case of payments for the benefit of a child of the marriage, the Court may extend the period of such payments so long as the child is receiving education and is under the age of twenty-one years: Provided further that, where a child of the marriage is, at the time of pronouncing a decree, under a disability of such a nature as to preclude it from maintaining itself independently, the Court may order that the payments shall be continued throughout the period of disability, notwithstanding the age of the child. ### Past Over/Under Payments Both parties had asked that account be taken of what each party claims is either an overpayment or an underpayment. The Court will consider the levels of payments made over the period and thus what each party's percentage payment should have been. As it turned out the figures put forward by the wife to allege underpayments relied on the
The husband's higher than his more recent level of income rather than his past lower income. The husband's calculations of overpayments is primarily based on his submission that the wife should have been contributing in accordance with her income levels. In response to the husband's submission, no finding has been made that the wife should contribute according to the levels of her income which would justify a retrospective calculation. However had such a finding been made, I would still hesitate to apply same retrospectively. The husband had the option to seek variation of the terms of interim maintenance orders and unless varied those orders stood. In response to the wife's contention which is that according to the Agreement she should have been paying only 10% towards housing and not 45%. It is not accepted that the Agreement applies to the housing circumstances. Additionally even if it did, I would hesitate to apply this retrospectively. She sought a variation in orders to increase the maintenance amount significantly, most recently in 2017 when she sought an increase of CI $2,830.00. This was refused except for a modest increase of CI $495.00. She has had over the period, the benefit of what can only be described as very generous maintenance arrangements and I would decline to take into account any suggested underpayments at this stage. Indeed her Counsel indicated that this is water under the bridge and would only be urged if the interpretation of the Agreement is as contended for by the husband. An adult daughter is no longer in the care of the wife. The wife has a daughter who resides with the care of J. The husband now has a new family and a second son. He will need to make provision for his second family. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019
Needs of the Parties

¶ [217] Both parties are able to meet their own day to day needs from their employment and company earnings. The wife to a lesser extent in comparison to the husband. She has started on the road to independent living but it is apparent that her primary need is for a stable home for J. and for herself to live. Counsel on behalf of the wife urges that she has a clear need for capital resources. On the evidence which I have seen, she has limited savings, limited assets and no surplus. # Financial and other Resources

¶ [218] There is an issue between the parties as to whether the wife has correctly given her earnings.

¶ [219] Since starting her own legal Firm, her second company which provides corporate services has gone from 20 companies in 2018 to 52 companies in 2019 as at the date of the hearing. She explains her declared income as including her earnings from both companies and additional income which she receives as a director of 2 companies since March 2018. She explained that while she had not previously disclosed her directorship in these companies, the total figure which she declared included her income from this.

¶ [220] It is noted that the balance sheet figures for her two companies showed her income as having amounted to CI $1,421.00 and $67,135.00. These taken together with the US $12,000 directors' earnings which she had received from her company of $26,326.31 for 2018 which should have been added to her income for 2018 giving her total income of just over $100,000.00. She explained in her oral
```html <table> <tr> <td>H</td> <td>CI$</td> <td>W</td> <td>CI$</td> </tr> <tr> <td>2014</td> <td>465，262.50</td> <td>116，600.00</td> </tr> <tr> <td>2015</td> <td>475，100.00</td> <td>109，082.90</td> </tr> <tr> <td>2016</td> <td>649，204.00</td> <td>135，808.33</td> </tr> <tr> <td>2017</td> <td>707，107.32</td> <td>114，845.72+5，700.00</td> </tr> <tr> <td>2018</td> <td>754，400.00</td> <td>78，556</td> </tr> </table> ``` ```latex \textbf{Assets of Wife} The wife are identified as having assets of $7,900.00, which includes personal assets from the sale proceeds or deposit of $5,000.00 to the property and $2,900.00 to land and property. The total excluding her pension of $137,870.00. There are outstanding costs to her. ```
```html <table> <tr> <td>Proceeds from sale of House and land</td> <td>77，900.00</td> </tr> <tr> <td>Small personal items， property and motor vehicle</td> <td>35，000.00</td> </tr> <tr> <td>Cash term deposit</td> <td>30，000.00</td> </tr> <tr> <td>Office equipment</td> <td>3，500.00</td> </tr> <tr> <td>Pension</td> <td>150，900.68</td> </tr> <tr> <td>Less liabilities</td> <td>(9，430.00)</td> </tr> <tr> <td>Total</td> <td>$287，870.68</td> </tr> </table> It is agreed between the parties that all of these items are within the category of separate assets under the terms of the Agreement and would not fall to be shared with the husband. As to her recently established companies， there is a major dispute with the husband seeking in the course of cross examination of the wife and at the eleventh hour a valuation of those companies. He says that they are going concerns and have some value other than the income that she earns from them. Counsel for the wife says that it too late， the balance sheets and financial statements for those companies were disclosed some time ago and Counsel for the husband did not before the commencement of the trial seek an order from the Court for the appointment of an expert to value the businesses. Counsel for the husband in his closing submissions submitted that if there is a finding adverse to him， the matter should be adjourned pending the obtaining of a valuation and the setting off of one half of any such value obtained against any lump sum payment to be made by the husband. I note that the profit and loss statements for the companies are analyzed by and at husband's A March 2010 hearing statement 19， some be some two months before the hearing statement re providing corporate services that the net income for the period January through December 2017 was $2，201.24 while that for the period January to December 2018 was $26，326.31. ```
While it was urged that it was only in cross examination that it became apparent that corporate registration levels had increased from minimal to 52 companies as at the date of the hearing, it must have been plain from the statements that the business was doing better over time and was becoming a viable operation. Conversely the Law Firm year on year had minimal liabilities and equity in 2017 and ended up with a net loss of $7,251.64 for 2018. My view is that the husband did not seek valuations prior to trial when he had the opportunity to do so. The likely reason is that having looked at the statements, he may not have considered this significant enough to make the appropriate application. He should not seek to do so now. I would decline to grant the request made. ### Assets of Husband The evidence before the Court as to asset values comes from the Affidavit of the husband dated 22<sup>nd</sup> March 2019 which is referenced above. In this Affidavit he gives his total asset value as $2,210,623.00. In a schedule produced, the wife accepts that the actual amount is $2,013,819, thus reducing the husband's total asset value. The parties produced differing schedules and regrettably did not agree on calculations except for the single item shown below. | Item | Wife's Schedule | Husband's Schedule | | --- | --- | --- | | Clipper Bay Land | 420,016 | 223,048 | | DeLand in Geor | | 309,270 | | Furment Account | | | | Deposit on Raw ge Town | | | | Funds in 7 invests | | | | Loans prior to marriage | | | | Loans to 1nd P | | | | Fircount less star | | | | demarriage | | | | Bank Accounts not listed in PNA | | | | Total | $2,013,819, | | Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 85 of 94
```html <table> <tr> <td>1</td> <td>230.</td> <td>These schedules are not in evidence and are not agreed, thus I have not included the</td> </tr> <tr> <td>2</td> <td>details of most of these items. The only figure in evidence is the higher value given</td> </tr> <tr> <td>3</td> <td>above. However in fairness to the husband I will use the lower figure put forward by</td> </tr> <tr> <td>4</td> <td>the wife as a base point.</td> </tr> <tr> <td>5</td> </tr> <tr> <td>6</td> <td>231.</td> <td>Additionally Counsel on behalf of the husband explained in further written</td> </tr> <tr> <td>7</td> <td>submissions on the 12th June 2019 that the major difference in value between the two</td> </tr> <tr> <td>8</td> <td>schedules arises from the fact that a mortgage was secured against the Clipper Bay</td> </tr> <tr> <td>9</td> <td>Land being CI $196， 968.00 which the husband had disclosed in his November 2018</td> </tr> <tr> <td>10</td> <td>disclosure and which was exhibited to his Affidavit of 22nd March 2019. He contends</td> </tr> <tr> <td>11</td> <td>that the reduction in the value thereof forms a part of the evidence in the case and</td> </tr> <tr> <td>12</td> <td>be taken into account. This seems to be borne out by the asset listing shown on</td> </tr> <tr> <td>13</td> <td>page</td> </tr> <tr> <td>354 of the trial bundle which does not show a value of $420， 000.00 for the Clipper</td> </tr> <tr> <td>14</td> <td>Bay Land. The value shown there is $264， 040.00. The change in value put forward</td> </tr> <tr> <td>15</td> <td>on behalf of the husband would reduce the asset total put forward by the wife to</td> </tr> <tr> <td>16</td> <td>$1， 816， 851.00 and one half of that would be $908， 425.50.</td> </tr> <tr> <td>17</td> <td>The Deserts of the Parties</td> </tr> <tr> <td>18</td> <td>232.</td> <td>In the Grand Court case of H.v.H(50)， Levers J. explained that the Court under the</td> </tr> <tr> <td>19</td> <td>heading “deserts of the parties” is to consider the credit or discredit that the parties</td> </tr> <tr> <td>20</td> <td>deserved as a result of their conduct. The Learned Judge noted that this included</td> </tr> <tr> <td>21</td> <td>cons to behavior violence and to behavior， ill treatment， violence and mental of physical domestic</td> </tr> <tr> <td>22</td> <td>consideration， ill treatment， physical domestic</td> </tr> <tr> <td>23</td> <td>issues arise</td> </tr> <tr> <td>24</td> <td>case.</td> </tr> <tr> <td>use. No such in the inst</td> <td>tant</td> </tr> </table> <sup>50</sup>[2007] CILR 135 Judgment：FAM 0066/2014：DJvBJ.Coram：Richards J.Date：05.8.2019 Page 86 of 94 ```
Section 25 Factors ## 233. The Section 25 factors<sup>51</sup> are as follows: ### a) the income, earning capacity, property and other financial resources which each of the parties to the marriage has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity which it would in the opinion of the court be reasonable to expect a party to the marriage to take steps to acquire; ## 234. Under this heading, I would add to the above that the wife agreed in evidence that her companies are currently on a path of growth. That was evident from the difference in earnings between 2017 and 2018 and the increase in companies for which corporate services are provided. She gave evidence of a planned travel to Hong Kong in order to promote her businesses. It would be reasonable to expect that this growth will continue and her earnings will increase. ### Re (b) the financial needs, obligations and responsibilities which each of the parties to the marriage has or is likely to have in the foreseeable future; - These have been addressed above. ### Re (c) the standard of living enjoyed by the family before the breakdown of the marriage; - The parties had a home in a Prospect, George Town but planned to build a home along the Seven Mile corridor and thus to have a more affluent standard of living. ### Re (d) the age of each party to the marriage and the duration of the marriage; - The parties are both approaching middle age. Although a short two year marriage, it was preceded by a committed settled relationship of two years and an overall period of cohabitation of at least five years. ### Re (e) any mental disability of either of the parties to the marriage; - There is no physical or mental disability of either party with respect to their ability to manage their affairs. <sup>51</sup> Statutory Factors in England and Wales Judgment: FAM 0066/2014: DJ v B.J. Coram: Richards J. Date: 05.8.2019 Page 87 of 94
Re (f) the contributions which each of the parties has made or is likely in the foreseeable future to make to the welfare of the family, including any contribution by looking after the home or caring for the family; - The wife in this matter has had and will have the primary care of J. This is likely to be a long term responsibility because of his special needs. In this regard her past and even more so her future contribution must be recognized. Re (g) the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it; - No issue has been raised or appears from the papers with respect to the conduct of either party as being a factor for consideration in this hearing. Re (h) in the case of proceedings for divorce . . . the value to each of the parties to the marriage of any benefit which, by reason of the dissolution or annulment of the marriage, that party will lose the chance of acquiring: - No issue has been raised or appears from the papers with respect to benefit lost by reason of the marriage ending. The Agreement expressly excludes pension sharing from consideration. **Clean Break**

¶ [235] The wife is already well on her way to independent living. Her new businesses have seen one year of growth and are doing well. Her income has increased year on year. There does not appear to be a need for on-going spousal support in her favour and there are a sufficiency of assets to allow for their affairs to be settled with some finality. This should be a case of a clean break.

¶ [236] The two strands of compensation and sharing with respect to the wife and how a clean break is achieved require careful consideration. This is not a case which calls out for compensation on the scale of the Miller v. Miller, McFarlane v. McFarlane52 case. Thle above ind e income tabicates tha 52 Supra Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019
```html <table> <tr> <td>1</td> <td>is a professional and her businesses appear to have good earning potential. While she</td> </tr> <tr> <td>2</td> <td>states that she has had to start her own business in order to give herself the flexibility</td> </tr> <tr> <td>3</td> <td>to better care for J., the husband has been paying for nannies and will be paying for</td> </tr> <tr> <td>4</td> <td>even more assistance for J. in the future. There is no indication that this has affected</td> </tr> <tr> <td>5</td> <td>her career in a way that calls out for the highest level of compensation. Nevertheless</td> </tr> <tr> <td>6</td> <td>she has had and will have primary care for J. on a long term basis and it is accepted</td> </tr> <tr> <td>7</td> <td>that this may well be for a life time. It is agreed that some element of compensation</td> </tr> <tr> <td>8</td> <td>should be included in any settlement.</td> </tr> <tr> <td>9</td> </tr> <tr> <td>10</td> <td>237. As to sharing: It is the sharing of after acquired assets as contemplated by the</td> </tr> <tr> <td>11</td> <td>Agreement which poses the most difficulty. The issue as to whether paragraph 4</td> </tr> <tr> <td>12</td> <td>applies and its meaning as well as whether it would operate unfairly in the</td> </tr> <tr> <td>13</td> <td>circumstances of this case, have been resolved as set out above. The final issue is the</td> </tr> <tr> <td>14</td> <td>amount which is to be shared.</td> </tr> <tr> <td>15</td> </tr> <tr> <td>16</td> <td>238. In opening and closing submissions the parties suggested that this matter could be</td> </tr> <tr> <td>17</td> <td>approached in two ways, either a judgment in principle as to the interpretation of the</td> </tr> <tr> <td>18</td> <td>Agreement or alternatively alighting upon a figure which the court considers to be the</td> </tr> <tr> <td>19</td> <td>right figure in the circumstances. Indeed Counsel on behalf of the wife encouraged the</td> </tr> <tr> <td>20</td> <td>latter option in order to save further litigation, costs and expenses in this case.</td> </tr> <tr> <td>21</td> </tr> <tr> <td>22</td> <td>239. Given the length of time which has already elapsed in this matter and no doubt the</td> </tr> <tr> <td>23</td> <td>costs which have been occasioned, it is accepted that the better course would be to try</td> </tr> <tr> <td>24</td> <td>to figure which else would be</td> </tr> <tr> <td>25</td> <td>giving effect to y guidelin the autonart</td> </tr> <tr> <td>26</td> <td>respecom</td> </tr> <tr> <td>27</td> <td>giv the statutorst</td> </tr> <tr> <td>28</td> <td>ies while</td> </tr> <tr> <td>29</td> <td>arrive at a frecognise</td> </tr> </table> Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 89 of 94

¶ [240] I do have one concern and this is as to the capital contributions. The intention of the husband was clearly to separate any assets which he held in the Firm. The fact that they were described incorrectly in the Agreement and described as a partnership interest does not detract from this. His only interest then and now was the percentage of his capital contributions.

¶ [241] Secondly, there is the illiquid nature of the resources available to the husband including in particular that portion of his assets which must remain with his Firm for him to maintain his contribution ratios. In *N. v. N. (Financial Provision: Sale of Company)*<sup>53</sup>, the Court justified a departure from equal division because of the non-liquid nature of the assets. The wife in that case received 39% rather than 50%. In this case the husband quite rightly agreed that because his capital contributions to the Firm are made by retained income, the nature of them would make them subject to distribution according to the Agreement. However this is income which has to remain with the Firm until he leaves it, if he is to maintain his capital contribution ratios and his partnership. It cannot seriously be contended that he ought to remove this amount from the Firm at this time, which would mean that he would have to make up the amount elsewhere in addition to arranging for capital outlay for the acquisition of a home for J. My view is that it would be unfair for these two reasons to include this particular item in the asset calculations.

¶ [242] This would reduce the available asset calculation of $1,816,851.00 to $1,507,581.00, which would be <sup>53</sup> [2001] 2 FLR 69 Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 90 of 94

¶ [243] It is appropriate given the express concession by the wife that her after-acquired assets are also to be shared that the amount of the husband's asset calculation be reduced by one half of any profit made by her companies for the period to date as shown on the profit and loss statements produced by the husband, ($13,163.15). The loss incurred by the Law firm is $7,251.64. This would leave an overall profit of $5,911.51. The total then would be $747,878.99.

¶ [244] I have been expressly invited by the parties in the interest of resolution of the matter to try to arrive at a sharing figure which is in accord with the Agreement and which is fair in all the circumstances. In the absence of an agreed schedule, and with some hesitation, I have considered the evidence in the case as put forward by the husband in his Affidavit. There is no other Affidavit evidence before the Court. As the wife accepts that there is some lowering of this figure and this inures to the benefit of the husband, I have taken this into account. The onus is on the husband as the potential payer to put forward proof that his assets are less than as claimed by the wife.

¶ [245] I believe that the figure arrived at which has been slightly reduced by taking into account the wife's profits would be a fair outcome in all the circumstances of this case. It is in line with the Agreement.

¶ [246] Given the illiquid nature of the majority of the husband's assets, despite the need for a clean break as soon as is possible, I would propose that he be given sufficient time to pay the lump sum so that he can plan a measured approach which would allow him to put the first instalment over a maximum period of 36 months. ``` **Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019** Page 91 of 94 ```
```html <table> <tr> <td>1</td> <td>247.</td> <td>Finally, I would add that if I am wrong as to the interpretation of the Agreement, and</td> </tr> <tr> <td>2</td> <td>had it resulted in the sharing of only $126,624.00 with the wife, this being the</td> </tr> <tr> <td>3</td> <td>calculation as at date of separation in 2014, I make it plain that I would have considered</td> </tr> <tr> <td>4</td> <td>this to be entirely inadequate in the context of this case. I would have considered</td> </tr> <tr> <td>5</td> <td>the absence of inclusion of the period of cohabitation prior to the marriage as an omission</td> </tr> <tr> <td>6</td> <td>which had the potential to operate unfairly against the wife. I would have concluded</td> </tr> <tr> <td>7</td> <td>that the strands of need, compensation and sharing required more than that amount and</td> </tr> <tr> <td>8</td> <td>would have considered the non-matrimonial assets or post separation assets in order</td> </tr> <tr> <td>9</td> <td>to address more fairly the circumstances of this case. I would have needed to bear in</td> </tr> <tr> <td>10</td> <td>mind that while the contributions of the husband to the acquisition of the after acquired</td> </tr> <tr> <td>11</td> <td>assets ought not to be disregarded, the wife's significant contributions in caring for the</td> </tr> <tr> <td>12</td> <td>child also needed to be considered. The ultimate aim would be to provide greater</td> </tr> <tr> <td>13</td> <td>assistance to the wife on the road to independent living. I would have said that the wife</td> </tr> <tr> <td>14</td> <td>should be provided with an amount reflective of her contribution in the past and in the</td> </tr> <tr> <td>15</td> <td>future and practically that she should be given a sum which allows her if she so chooses</td> </tr> <tr> <td>16</td> <td>to make a down payment on her own home (possibly 10% of $1.100,000.00) with 7%</td> </tr> <tr> <td>17</td> <td>closing costs, about $300,000.00) and a further sum which would then allow her to</td> </tr> <tr> <td>18</td> <td>have remaining, a small nest egg of savings which would form the basis for a capital</td> </tr> <tr> <td>19</td> <td>build or to have a capital sum available in circumstances where her savings are said to</td> </tr> <tr> <td>20</td> <td>be depleted and there are outstanding legal costs.</td> </tr> <tr> <td>21</td> <td>In a ving carefund taken into</td> <td>ne</td> <td>iled here</td> </tr> <tr> <td>22</td> <td>conclusion hly consider the evidence</td> <td>of whichlet</td> </tr> <tr> <td>23</td> <td>omissions ma matter, so I h</td> <td>I would</td> </tr> <tr> <td>24</td> <td>answer the issues raised in the following way:</td> </tr> <tr> <td>25</td> </tr> </table> ```
Taking into Account the Agreement, a fair, financial provision for the wife, on a sharing, and compensation basis would be in the amount stated above. On a proper construction of the Agreement, the words "during the marriage" in paragraph 4 of the Agreement should be construed to mean until such time as a court orders the dissolution or annulment of the marriage. Such construction would not operate unfairly, given the husbands' resources. The husband conceded that the capital account/loan with his Firm should be considered to be Joint Property because it was paid from his income and income falls to be distributed pursuant to paragraph 4 of the Agreement. However the intention of the Agreement and the need to retain this asset in the husband's Firm as a capital contribution would make its inclusion in the asset distribution calculation unfair. In the circumstances of the present case, financial provision ought to be determined on a 'clean break' basis. In his evidence before the Court the husband agreed to meet the special treatment costs for the child of the marriage. The Agreement requires that other outgoing costs which arise in relation to J, in particular, nanny, and associated costs are to be met by the husband. Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 93 of 94
```markdown # Costs

¶ [249] Should the parties wish to make submissions on costs they may do so within seven days of receipt of the perfected judgment. ## Dated this the 5th day of August 2019 Honourable Justice Cheryll Richards Q.C. Judge of the Grand Court Judgment: FAM 0066/2014: DJ v BJ. Coram: Richards J. Date: 05.8.2019 Page 94 of 94