Court of Appeal

Published January 3, 2008

Crossley v Crossley

Before Lord Justice Thorpe, Lord Justice Keene and Lord Justice Wall

Judgment December 19, 2007

A judge had a discretionary power in ancillary relief proceedings to require a party to show good cause why a prenuptial agreement should not govern the division of assets on the dissolution of the marriage.

The Court of Appeal so held in dismissing an appeal brought by the wife, Susan Mary Crossley, against the decision of Mr Justice Bennett ([2007] EWHC 3114 (Fam)) when he ordered that neither she nor the husband, Stuart James Crossley, had to produce the customary documentation on disclosure of assets and neither was to prepare a questionnaire under the Family Proceedings Rules (SI 1991 No 1247 (L20)).

Mr Charles Howard, QC and Ms Susan Wilkins for the wife; Mr James Turner, QC and Mr Deepak Nagpal for the husband.

LORD JUSTICE THORPE said that the husband was 62 and had an independent fortune declared to be £45 million in December 2001. The wife was 50 and her declared fortune was £18 million.

The husband had been married once before and had four children. The wife had been married three times before and had three children. The parties met in June 2005 and became engaged in September. There were negotiations between experienced lawyers to settle a prenuptial agreement.

The prenuptial agreement was dated November 16, 2005. The critical clause was article 8 which provided essentially that each party should walk away with what he or she had brought and by article 8.3(c) neither party should apply for any order for financial provisions.

The parties married on January 5, 2006. By March 2007, they had separated and on August 15, 2007, the wife petitioned for divorce.

On September 11, the wife issued a Form A which was the preliminary step to pursuing a claim for financial relief.

On September 20, the husband issued the summons which sought an order for the wife to show cause why the claims should not be resolved by reference to the prenuptial agreement.

Mr Justice Bennett ordered that the parties did not have to produce the customary documentation annexed to their Forms E, on disclosure of assets in ancillary relief proceedings, and neither party was to prepare a questionnaire pursuant to rule 2.61B(7)(c) of the 1991 Rules.

Instead, he ordered the wife’s solicitor to write a detailed letter setting out the wife’s case concerning alleged non-disclosure of other assets by the husband.

The wife lodged an appeal, submitting that: (i) the judge erred in directing the husband’s summons to be heard as a preliminary issue; (ii) the judge erred in failing to apply the 1991 Rules, which were mandatory; (iii) the judge was wrong to find the overriding objective in rule 2.51D permitted him to ignore rule 2.61B, and (iv) the judge was wrong to prevent the wife from filing a questionnaire.

His Lordship had not been persuaded that there was any weight in any of the four grounds advanced. His Lordship was unpersuaded that the Family Proceedings Rules were intended to be a straitjacket precluding sensible case managment.

Lord Justice Keene and Lord Justice Wall delivered concurring judgments. Solicitors: Sears Tooth; Withers.

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