Briers v Briers [2017] EWCA Civ 15

23 November 2016

Summary

Facts:

  • The parties married in 1984 and separated in 2002. During the marriage, H started a sportswear trading business. When the parties separated, W took no further part in the business.
  • Decree absolute was pronounced in 2005 after protracted negotiations. While the parties reorganised their finances, no orders were made at that time.
  • In 2013, W applied for financial remedies H argued that there had been an agreement reached in 2005.
  • On 6 May 2015, HHJ Rogers found that there had not been a full and final settlement. W had only accepted the proposed deal on the condition that H provided full disclosure, which he had not. Further, H drove the negotiations.
  • HHJ Rogers made an order that H pay a lump sum of £1.6m to W in four instalments over two and a half years, and to transfer 25% of his Standard Life pension, policy and shares to W
  • H appealed on the basis that (a) the judge had erred in not finding that there had been an agreement, and (b) that W’s delay in issuing proceedings had not been appropriately considered. He submitted that the appropriate order should be a lump sum of £500,000.

Held:

  • The question as to whether an agreement was reached was dominated by the evidence of the parties. An appeal court would be very slow to interfere with findings of fact made by a judge that had been able to assess the parties and their evidence. The trial judge formed a robust view of the parties and their relationship. He decided H was in psychological control. H failed to provide full disclosure to W and the court. The Court of Appeal would not interfere with the finding that W had required full and frank disclosure before reaching an agreement. As there was no such disclosure, this was sufficient to determine that there was no agreement.
  • H’s argument as to prejudice was rejected. There were two possible sources of prejudice: the recollection of witnesses and the existence of documents and the ordering of the parties’ affairs over time. The former was not relevant and the latter was clear; H took responsibility for the company, and W took responsibility for the family.
  • A delayed application does not put the burden on the applicant to justify any distributive remedy. Delay, its explanation and effect, is an additional factor to be considered in such distribution.
  • Fairness includes consideration of entitlement and need. Even when entitlement is considered in the context of marital acquest and post-separation accrual, the genesis of growth may still be a consequence of the fact that it was a matrimonial asset.
  • The parties made equal contributions to the marriage before separation, and W played an important role in the business. W subsequently contributed after separation as the primary carer of the children. The value of the business was not to be taken at separation, as that gave no effect to W’s entitlement in the business as an undivided matrimonial asset. It was correct to take the current valuation and discount W’s entitlement; the award of 27-30% of the overall assets to reflect the delay was upheld.

Stay Up To Date

Follow us on Linkedin to stay up to date with the latest news from 1 Hare Court.