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L v K (Jud)

Judgment in ancillary relief proceedings involving conduct, inherited wealth and post-nuptial agreements where the husband had been convicted and jailed for sexually abusing his step-granddaughters and the main family wealth was inherited by the wife. There was no award made to the husband.

IN THE HIGH COURT OF JUSTICE                                                                               FD07D05911     
FAMILY DIVISION                                                                                    

Thursday, 4th June 2009



B E T W E E N :

L (Petitioner)

-  and  -

K (Respondent)


Transcribed by BEVERLEY F. NUNNERY & CO
Official Shorthand Writers and Tape Transcribers
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MR. J. TURNER QC and MISS LISTER appeared on behalf of the Petitioner Wife.

MR. V. LE GRICE QC appeared on behalf of the Respondent Husband.


The judgment is being distributed on the strict understanding that in any report no person other than the advocates or the solicitors instructing them (and other persons identified by name in the judgment itself) may be identified by name or location and that in particular the anonymity of the children (grandchildren) and the adult members of their family must be strictly preserved.

(As approved by the Judge)

1. This is the hearing of cross-applications for ancillary relief.  The husband has not formally made an application but his solicitors have undertaken to issue an application on his behalf.  At this hearing, the husband has been represented by Mr. Le Grice QC, and the wife by Mr. Turner QC and Miss Lister. 

2. The hearing was listed to start on Monday, 18th May 2009 with a time estimate of five days.  This listing had been obtained at the beginning of October 2008.  The husband has acted in person for a substantial part of the proceedings.  Once it became clear that his resources probably made him eligible, his previous solicitors applied for public funding.  Regrettably, the Legal Services Commission was unable to determine this application until Monday, 18th May, when public funding was granted, despite my requesting on 23rd April 2009 that they urgently deal with the application, having regard to the imminence of the final hearing.

3. Mr. Le Grice was therefore first instructed in this case on the Monday.  On his application, I adjourned the case and I listed it to start with the wife's opening on Wednesday afternoon.  Fortunately, I was then able to continue the hearing into the following week, as it was vacation.  Otherwise the case might well have had to be adjourned for what would have been, in my view, a wholly unreasonable length of time, especially in the context of this case.  I have not been told, nor have I inquired, why the Legal Services Commission was unable to deal with this case more expeditiously, so I confine myself to saying that I trust the courts can rely on the Legal Services Commission to deal promptly with a case such as this in the future.

4. I should also make clear that, although Mr. Le Grice came into this case extremely late, I do not consider that he or, more importantly, the husband has been at any significant disadvantage as a result of Mr. Le Grice's late instruction.  It has been apparent during the hearing that Mr. Le Grice has canvassed in evidence and raised in argument every point which could, in my view, have reasonably been canvassed or raised.

5. The substantive claim being made is the husband's against the wife because the vast bulk of the wealth in this case is in the wife's sole name.  This reflects the fact that this wealth came to the wife from her father and that, in 1993, the parties entered into a postnuptial agreement pursuant to which the husband transferred his (then) interest in the former matrimonial home to the wife.

6. The wife is aged 70 and the husband is aged 65.  They married in 1983.  It is the wife's second marriage and the husband's first.  The wife has three children by her first marriage.  They also became children of the family of this marriage, as they were all minors at the date of the marriage.  These children each now have children of their own. 

7. The marriage came to an end in 2007 when the husband was arrested for sexual offences against the wife's grandchildren (his step grandchildren).  He was charged with a number of offences, principally under the Protection of Children Act 1978 and the Sexual Offences Act 2003.  The husband pleaded guilty, ultimately, to 15 counts.  He was sentenced, on appeal, to a term of imprisonment for public protection, with a minimum term of three years. 

8. The wife contends that the circumstances of this case are such that the husband should receive only the value of his interest in a jointly owned property, which would equate to sum of approximately £100,000, but that no substantive financial award should be made in his favour.  In advancing this case, Mr. Turner relies on three principal factors: (1) the husband's conduct, not only the matters in respect of which he was convicted but also other elements of the husband's conduct; (2) the terms of the 1993 agreement, under which the husband effectively agreed that he would make no claim against the wife in the event of their divorce; and (3) the origin of the wealth, coupled with the husband's lack of contribution.  Mr. Turner submits, as I have indicated, that the husband should receive only a sum approximately equal to the value of his half-interest in the jointly owned property.

9. Mr. Le Grice, on behalf of the husband, acknowledges that the husband's conduct is conduct which it would be inequitable to disregard.  He submits that when the husband's conduct is balanced with the other s.25 factors, including the length of the marriage, the husband's contributions, his age and his needs, a lump sum award of £500,000 is, in fairness, justified.

10. The parties' relationship started, for the purposes of this judgment, in about 1981.  At that time, the husband was working in the art world.  The husband left this employment about one year later and has not been in paid employment since then.  The wife's father died in 1984.  Prior to his death, he had given the wife significant assets and she inherited further assets on his death.  It is this wealth which has funded the parties' standard of living during the marriage.

11. In 1982, the wife purchased a property in London which became the matrimonial home following the parties' marriage in 1983.  Shortly after the marriage, the wife began to fund a non-profit organisation initiated by the husband and in which he worked until the early 1990s.  This has proved to be a very successful project.  In 1987 the parties purchased a property in their joint names. 

12. According to the wife, the parties separated for several months in 1990 as a result of the husband's relationship with another woman.  She says that they separated, again, in 1993 when she found on the husband's desk a photograph of a scantily-clad woman in a very provocative pose.  In his oral evidence, the husband said that he recalled only one separation.  In either event, in 1993, both parties consulted solicitors, following which there was an exchange of correspondence.

13. By letter dated 17th November 1993, which was in due course signed by the husband, the wife set out the terms on which she would consider a reconciliation.  The letter reads as follows:

"When we met last weekend, I told you that I definitely wanted some kind of postnuptial agreement setting out my terms for a reconciliation and they are as follows:

1) We will no longer have any joint bank or building society accounts and, in future, I will hold all my investments in my sole name.
2) You will transfer your interest in the former matrimonial home back into my sole name."

Then there are a number of other matters.  It concludes:

"I would like to remind you of the assurance that you once gave me, that, if we were ever to separate, you would not seek to take advantage of the fact that I am much better off financially than you.  I believe that I have always been very generous to you throughout our relationship and intend to be so again and I would like you to reconfirm your previous assurance on this point."

14. The next letter is dated 18th November 1993 and is from the wife's (then) solicitor, to the husband's (then) solicitor and it reads as follows:

"I understand that our clients have been in communication and are reconciled but that mine sent yours a letter setting out what I hope is agreed between them.  A copy of that letter is enclosed.  However, your client has intimated that there are one or two points that he wants to address in that letter and that he wants you and me to discuss the letter as a whole."

15. The next letter is dated 19th November and has been disclosed, although it would have been privileged at the time it was written, because it is a letter from, I believe, a solicitor instructed on behalf of the wife to the wife.  That reads as follows:

"I have spoken with ...[then it gives the name of the other solicitor then acting for the wife]... and, unfortunately, the husband's solicitor was in court all day and, in view of the fact that the husband is uncontactable today, he rather doubted that he would have a chance to discuss your letter to the husband, with him, until Monday.

It would appear that the husband has no particular problems with the contents of your letter, and the solicitor did not mention that he (the husband) wanted to add any paragraphs of his own.  The main sticking-point, so far as the solicitor is concerned, seems simply to be that he is nervous about advising the husband that it would be safe for him to sign the letter, in view of the contents of the final paragraph.

We both find the husband's solicitor's attitude to be rather surprising, in view of the fact that a letter of this kind can never have legally binding effect in the sense of tying the hands of the divorce judge in the future, should it ever come to that.

The wife's solicitor made this point to the husband's solicitor pretty forcibly this morning and, hopefully, he will do what is necessary on Monday morning."

16. The next letter is dated 23rd November 1993 and it is a letter written directly by the husband to the wife.  It coincided with a letter also written on 23rd November 1993 from one of the wife's solicitors to the wife, in which he reports that the husband's solicitor has indicated that he wants to make a couple of amendments to the letter before it will be signed by the husband.  In his letter of 23rd November 1993, the husband says:

"Further to our long conversation this morning, I do realise that you will not accept any reservations or amendments to the agreement dated 17th November that you have sent me to sign.  I also realise that you will not discuss our reconciliation until I have signed it.  You know that I am doing all I can to secure employment again and I know you are aware of the difficulties at this time of my securing any long-term work.  I am therefore obviously concerned that the effect of my signing this document, on my position generally, because I would have no roof over my head and I would be without any income after exhausting my savings.  I am of course painting the bleakest scenario, but, for me, it is also a very impossible and real one.  However, in spite of what my lawyer has advised me and for the sake of a reconciliation which you know I very much want and hope for, I am prepared to accede to the demands in your letter, which I am now signing and returning to you. 

I hope that, in spite of the way you were feeling and speaking this morning, you still genuinely wish to consider getting together again, and that we can soon begin discussing our permanent reconciliation now that the security of your fortune is assured."

The husband then duly signed the letter of 17th November 1993.  The matrimonial home was transferred into the sole name of the wife, in accordance with one of its terms.

17. From about 1994, the husband began to travel abroad for reasonably extended periods.  This led to the publication of a book by him.  This was critically well received but was not financially successful.  He continued to travel abroad after this date, again, he says, undertaking research for an intended further publication.

18. The husband has admitted that he first sexually assaulted one of the wife's granddaughters in August 2004, when she was then aged about six.  He pleaded guilty to other occasions of sexual assault, including in respect of another of the wife's granddaughters.  The abuse was discovered in 2007, leading to his arrest and subsequent conviction on 15 counts.  The offences of which the husband has been convicted include sexual assault, as I have indicated, against two of the wife's grandchildren on a number of occasions between 2004 and 2007, taking indecent photographs of one grandchild and making indecent photographs and other related offences.  The prosecution did not proceed with two other charges.

19. A large part, if not all, of the evidence collected for the criminal proceedings has been adduced in these proceedings.  This evidence includes statements from a number of people and three files of what are called "chat-room logs".  These latter documents record the content of communications between the husband and other individuals over the internet.  They include communications in which the husband purports to describe his sexual abuse of the grandchildren.  The abuse he describes is additional or more extensive to that covered by the offences for which he has been convicted.  It includes other grandchildren and it includes more extensive abuse of the children he admits abusing than is covered by the criminal convictions.  In addition, the husband describes what purports to be his sexual abuse of other children in other countries.  The husband asserts that much, if not most, of the content of these communications was fantasy.

20. On the evidence before me, I am not in a position to decide where fact ends and fantasy begins in respect of these internet communications.  Clearly, the Crown Prosecution Service did not consider that this information merited additional or further charges to those to which I have referred.  However, it is information of which the wife and her family are aware and with which they have had to deal.  To adopt words from the criminal proceedings "These communications consist of unrestrained filth and depravity of the worst type."  I note in particular, for the purposes of my judgment, that the husband gave the first names of some of the grandchildren during the course of some of these communications and that he accepts he sent photographs of, and/or related to, two of the grandchildren to another person over the internet.

21. The wife started divorce proceedings in 2007.  The decree was made absolute in 2008.  Her application for ancillary relief was commenced on 12th December 2007.  The first appointment took place on 13th March 2008, with further directions being given in September and December 2008.  The latter order confirmed that the final hearing would commence on 18th May 2009.

22. I have read written statements from the wife, the husband, two of her children and the husband's sister.  A significant number of other documents have been assembled for this hearing, including, as I have said, a large number of documents from the criminal proceedings.  I have heard oral evidence from each of the parties and from the wife's two children who have filed statements.

23. The wife's written evidence is contained in her Form E, sworn on 12th March 2008, and in two statements, dated 20th June and 9th December 2008.  In her Form E she says:

"The respondent's behaviour has had a devastating effect on me and on all those members of my family who have been affected by it … I consider that it represents exceptional circumstances and it should be taken into account in considering the distribution of the assets in this case.  I, and also my family, find it exceptionally difficult to contemplate making any financial provision for the husband in the light of his serious and criminal behaviour.  I would also add that I simply do not know for how long the husband has behaving in this way."

24. In her first statement, she says:

"I have to say that, with the benefit of hindsight, it now seems clear that, quite ruthlessly, the husband took advantage of our relationship and our marriage to prey on my children and, subsequently, upon my grandchildren.  Regrettably, but increasingly clearly, he was motivated towards marriage with me by the fact that I had a family to whom he was clearly attracted for all the wrong reasons; also because he knew I had substantial assets, whereas he had little or no financial security; and, finally, because I now believe our marriage gave him a cloak of respectability to continue his other activities.

My conclusion is that all these factors were crucial in his decision to marry me and demonstrate that, for him, our marriage was a sham from the outset."

Later in that statement, she says:

"In conclusion, I have to say that my sanity has been sorely tested throughout this period.  I have lived from day to day.  The respondent has, as I have said, been both clever, devious and manipulative.  He has entirely betrayed me, my family and my friends over a sustained period of many years.  His behaviour has infected three generations of my family and it is extremely hard to come to terms with the dreadful damage he has done to my granddaughters.  As the judge at the sentencing hearing emphasised, we shall simply not know for many years just how seriously that damage may manifest itself eventually and whether or not my grandchildren will recover fully from their experiences.  As I say, even in the past few weeks, they have faced new situations from which it is clear that they are both still suffering and I do not see that changing or improving in the near future.  It is incredibly distressing and concerning for me as it is for the children and for their parents also.

If I had not taken the decision to reconcile with the husband in 1993, he would not have had any access to my granddaughters, and I am just appalled that, unknowingly, I took him back again.  It is my clear contention that the husband's behaviour, which has affected not just me but my entire family and two future generations, is exceptionally serious and should disentitle him to any material claim for financial provision in this case."

25. The husband, in his evidence, says that he feels overwhelming guilt and remorse, and requests that he should not be punished twice for the same offences.  He describes how the lifestyle he and the wife enjoyed was that chosen by them together.  He says that the marriage was predominantly a happy one and far from being a sham.  In his first statement, he deals with what he says were the contributions made by him to the wife's resources.  First, he points to his involvement in a company which was formed by the residents of the buildings of which the former matrimonial home formed part.  The husband served on the board of this company.  The purpose of the company was to ensure that the residents collectively also became the owners of the building.  The husband asserts that he has thereby contributed to an increase in the value of the former matrimonial home.  Secondly, the husband says that he became involved with managing the wife's investments.  He was frequently in touch with, and participated in, meetings with her financial advisor and her investment manager.  As a result, he says that, although it would be impossible to quantify his contributions, the wife's investments increased in value through his input.  The husband also refers to other ways in which he says he made a direct or indirect financial contribution. 

26. In his written evidence, the husband deals with his prospective inheritance from his mother and, in his first statement, he said:

"When my mother dies, I had expected to inherit the residue of her estate jointly with my sister and my brother.  The maximum I could have expected was £100,000.  However, I believe that she shall soon enter a home, and the capital from the sale of her home shall dwindle accordingly."

Later in that statement, he says:

"It now appears unlikely that I shall receive any substantial inheritance from my mother, other than personal effects of small value.  The house is soon to be sold to pay towards her care in a nursing home.  It is also my understanding that my mother wishes to make bequests to my sister and her children."

27. In respect of his criminal behaviour, the husband says:

"In recent years, I was overcome by an identifiable discrete sickness which plagued me and which I could not discard.  For this horrible affliction and consequent offences, I am now thoroughly and justifiably punished.  Moreover, with psychotherapeutic help, the sickness is being dispelled.  Notwithstanding the distress that I have caused, the claims that the applicant makes with hindsight about my sexual activities are largely the product of her imagination and, understandably, her anger.  These claims have also been formed as a result of what she was told by the police, who entertained wild suspicions about me but who were mistaken.  Indeed, the wife's mind has been greatly affected by horrible speculations made by the police."

28. The husband disputes many of the wife's allegations.  He accepts, with hindsight, he should have been more measured around children and young people but says that his excessive enthusiasm did not result from any sexual connotation around children.  He specifically denies that he has sexually or indecently assaulted anyone other than the wife's granddaughters.  He also says:

"The wife's claims about my behaviour with children overseas … are beyond absurd.  The principal cause of most of these speculations about my having an extended criminal history with regard to children can be explained through my activities on the internet in 2003 to 2004.  At this time, I became curious about the topic of so-called child sexuality and related matters, endlessly discussed and publicised in the press and elsewhere.  My curiosity then began to take the form of picture exchange and regular participation in so called chat rooms.  In these there are, apparently, thousands of indecent images of children of all kinds.  After a time, I tired of the banality of the chat-room conversations and began to experiment by describing a range of scenarios involving children, from the mild to the extreme.  This gave me creative authorial satisfaction, while providing interest in the stimulation caused to other people.  In time, I began to derive sexual gratification myself from my stories and, by the time of my arrest, this had all become a deep seated psychological and emotional problem; a kind of addition which I could not break.  My arrest has been a relief of sorts.  Not only did it immediately bring the internet activity to an end, but ensured that I could never commit any more offences, which might well have been even more serious and damaging.  It is a hazard regularly experienced by writers at all levels that readers suppose that nasty events or actions which have been so horribly described as to be utterly convincing can only have been experienced at first hand.  On finding my unusually authentic sounding and comparatively well-written descriptions of sexual criminality, most of which were based on countries, places and people that I had observed or learned of, the police were, understandably, overcome and convinced by the dramatis personae and scenarios they encountered in my stories.  Whilst I must emphasise in this respect I am thoroughly disgusted by the scope of my writing and the pleasure it gave me in sweeping along the emotions of other addicts, I find it almost unbelievable that the police should not have fallen into the well recognised trap of confusing fantasy with reality, but that these professionals should then have exercised their frustration by disseminating their speculations to the most vulnerable people concerned, such as the applicant, her family and my own sister."

29. In her second statement, the wife again makes her views and sentiments clear:

"It is my case that the husband's conduct, both before and during our marriage, has been so appalling that it would be inequitable for the court to disregard it.  I believe that the husband only married me at all because I had two things that he wanted: children and money.  His conduct has caused three generations of my family irreparable harm.  I am appalled and outraged that he caused me unknowingly to facilitate his behaviour by funding it for many years."

And then a bit later in that statement:

"I feel so responsible for marrying (the husband) in the first place, for staying married to him when he was unfaithful and irresponsible during the marriage, for not picking up the signs of his abuse of members of my family ... None of this can be undone but none of us can assess the harm which has been done to the children."

30. The wife disputes the husband's factual assertions in respect of his alleged contributions towards her wealth.  She does not accept that the growth in the value of the former matrimonial home owes anything material to his contributions.  She also disputes both the extent of his involvement in the management of her investments and the effect of that involvement, saying that she always had investment managers on whom she predominantly relied.

31. In her written statement, the first child who gave evidence says:

"I should say, at the outset, that I am absolutely devastated by the husband's horrible acts and behaviour towards my family.  It is clear that he has calculatingly worked his way through four generations of this family, gaining our trust and then abusing us in the most hurtful and hideous ways, living out his appalling fantasies with the weakest of us and showing absolutely no remorse.  The events of the past two years also have been distressing and sickening for all of us."

32. She also refers to her being aware of the husband's describing, in the chat-room logs, his abuse of one of her children.  She summarises the impact of the husband's behaviour as follows:

"I am simply unable to explain just how hurt and angry I am about what the respondent has done to my family.  The damage that he has done includes my anxiety about what may have happened to my child, which concern is reinforced by things that the respondent has said about her in perverted discussions on the internet.  I just do not know what to believe and I fear that I will never know the truth.  The last 18 months have been hell for all the family.  My own trust and my view of the world has changed forever.  I feel vulnerable and I can no longer leave my children in the care of other people without feeling suspicious of them.  What remaining innocence I had is gone, lost forever.  My husband and I have struggled through much before, but this has been a real test for us.  I hate what the husband has done to my family."

Then she describes the impact of the husband's behaviour on other members of her family:

"What I have come to understand is that what the husband has done to me and my family will never go away, it will always be here.  Because of years of deceit and manipulation, the husband has successfully devastated my family.  My mother behaves like a fragile battered woman and my father continues to have serious problems sleeping because he blames himself for not protecting his children and grandchildren.  He then takes turns blaming my sister and me. 

As a direct result of the respondent's actions, my marriage has been greatly tested.  My relationship with my mother is difficult and tense.  I do not have a relationship to speak of with my brother, and my relationship with my father is very tough."

33. The other daughter of the wife who gave evidence deals, in her statement, with an incident which she says took place when she and the husband had travelled to Paris together.  They had gone there to look for accommodation for her.  One morning, she went to his room and she describes in her statement what she says took place when she went there.  I do not propose to read into this judgment the detail of what took place.  The statement also deals with the husband's abuse of her daughter:

"As a result of the discovery of the photograph which was taken during one of these two summers [2003 or 2004], it now seems clear that, throughout this period, the husband was taking indecent photographs during periods when I thought he was reading her stories and sharing fun time with her.  My daughter has since told me that it was their little secret and that the husband had told her that photographs could not be developed from the camera.  He persuaded her to keep the secret to herself.

Having to see the photograph of my daughter was a devastating experience for me and I shall never be able to get it out of my head.  She was just a small, trusting and innocent child.  I have no idea how far that photograph may have travelled around the internet and by whom it may have been viewed but the thought that it may have been seen by other paedophiles sickens and hurts me.  It makes my stomach turn to think about it.

Tragically, the happy memories of my mother's home … have now been replaced by the awful memories of what took place there between the husband and my daughter ...  What were very happy memories are now forever marred by this and I find it difficult to believe that I will ever be able to go there again."

She then refers to an incident in late 2006 and she says:

"I am now aware that, in December 2006, I made a mistake.  I did not listen to my daughter when she told me that she wanted to talk about the fact that the husband was giving her special hugs.  I can now see that my daughter wanted to tell me about ... that she was confiding in me and looking for help in what was a very difficult and serious situation for her, and I failed to recognise that."

Then she describes how she has to live every day with that thought and the feeling of guilt that she ignored her daughter at that crucial time.  She also refers to the anguish and distress suffered by her and her husband.  I have taken the rest of her statement into account but I do not propose to read any other passages into this judgment. 

34. The husband's sister has also provided a statement which deals with their prospective inheritance.  She comments on the husband's assertions, which I have quoted from his statement, and says:

"I am very surprised at the husband making this statement.  He must have forgotten, as he certainly knew, that his brother has ceded his share of the inheritance to the husband and myself jointly and that our mother's will states that her estate is to be divided equally between him and I."

Then she says:

"I can confirm that I am fully aware of this position as a result of discussions with my mother and also because I have seen a copy of her will, but there are absolutely no plans for her home to be sold to pay for a nursing home place and I am also sure that she has no intention of changing her will in the light of the husband's convictions."

35. In response to this statement, the husband repeats that he believes his mother will soon be compelled to move into a nursing home and will be obliged to consider selling her home to pay for the cost of a nursing home, even if her family and friends offer to defray some of the costs.

36. The husband had responded to each of the statements from the other witnesses, and he disputes much of their contents.  He repeats that the marriage was happy and normal until 2003 or 2004, when, he says: "I was seized by this terrible affliction."  He apologises again for his behaviour and says:

"I fully understand and take ownership of my crimes and my offensive behaviour, criminal or otherwise, towards the wife, the victims and all the family and my friends.  I wish to apologise for all the damage, hurt and anger caused … 'Remorse' seems to me a word quite inadequate to express how I feel now and shall feel for the remainder of my life."

He expresses regret over having used the children's names in his internet communications.  He also asserts that he only sent pictures of two of the grandchildren to one person, who he had got to know well and who undertook not to send them on to anyone else.  In respect of the incident alleged by one of the wife's daughters to have taken place in Paris, he says that he has no recollection of that incident at all and says: "It all sounds so improbable."

37. The written statements provided in this case are so detailed that, in the event, the oral evidence has been relatively confined.  The wife gave her evidence via a video link, as she said she could not tolerate being in the same room as the husband, whom she now describes as "a monster".  She described feeling that he had "conned" her for 25 years.  The wife was asked in cross-examination about the chat-room logs.  She replied that she could not know whether they contained fantasies.  However, the "incredible detail", as she described it, made it difficult for her to believe that it was all fantasy.  She describes seeing one of the photographs as "very, very upsetting" and said that one of the effects of the husband's behaviour has been that all her memories of the last 25 years are now tainted.

38. In her oral evidence, the first daughter who gave evidence referred to "the terrible, terrible damage" which, in her view, the husband's behaviour has caused in the past and will cause in the future.

39. The second daughter who gave evidence told me that the consequences of the husband's behaviour have been "enormously stressful", "very distressing and extremely upsetting".  She was particularly distressed at seeing the indecent photograph of her daughter taken by the husband.  She also told me that she will have to live for the rest of her life with her failure, as she sees it, properly to listen to her daughter at the end of 2006, when she now believes she was trying to tell her what the husband was doing.  She describes some of the internet communications she has had to read as being "completely sickening and disgusting".  She was clearly devastated by the fact that her name and the children's names were used by the husband in some of his communications. 

40. In his oral evidence, the husband acknowledged that his offences are "horrendous and unforgivable".  He apologised both for the nature of his offences and for their consequences.  In respect of his imprisonment, he intends to apply for parole in April 2010, subject to reports from a psychologist.  He would hope, after the period when he will be required to live in a hostel, to live in London. 

41. In cross-examination, the husband accepted that his criminal behaviour was the grossest breach of trust which had inflicted dreadful damage on the wife and her family.  He also acknowledged that the end of the marriage was entirely his fault.  He asserted that he had only pleaded guilty to assaulting one of the grandchildren because his lawyer had advised him that he had no choice but to do so.  When asked about the 1993 agreement, the husband accepted that he fully appreciated its potential consequences and that the reconciliation had been wholly dependent on his agreeing to the wife's terms.  He said he realised that, if he had not agreed to those terms, there would have been no prospect of a reconciliation.  It was suggested to him that his present financial situation is as envisaged by him in his letter in November 1993.  His response was to say that his current circumstances are very different because of the likely effect of his offences.  It is these different circumstances which, in his view, require the agreement to be looked at again.

Section 25 Factors
42. I now turn to deal with the section 25 factors save for contributions and conduct.

43. The wife's resources consist of the former matrimonial home, her interest in the jointly owned and other property and an investment fund which provides her with her income.  The former matrimonial home has been on the market for sale for some considerable time.  In the current market it is not clear what sale price will be achieved but, broadly stated, the net equity will be in the region of £3.1 million to £3.5 million.  The wife's interest in other properties is worth approximately £150,000 and her investment fund has a current net value of just over £900,000.  Accordingly, the wife's total wealth is broadly in the region of £4.3 million.  She has, clearly, no earning capacity.

44. The husband's assets consist of his interest in the jointly owned property, worth approximately £90,000 and a pension fund worth just over £8,000.  I will deal later with his prospective inheritance.  The husband has a very limited earning capacity. 

45. I would describe the standard of living during the marriage as being very comfortable.  The marriage subsisted for 25 years.  I have already given the ages of the parties.  I will return to contributions, needs and conduct later in this judgment.

The Parties' Respective Submissions
46. Both Mr. Turner and Mr. Le Grice have made substantial written and oral submissions and I propose in my judgment only to summarise their respective cases.  I have of course, however, taken into account all the points raised by them on behalf of their respective clients.

47. Mr. Turner submits that the factors which, cumulatively, determine the outcome in this case are: (1) the husband's conduct as itemised in a schedule of allegations; (2) the terms of the 1993 agreement; and (3) the origin of the wealth, coupled with the absence of any positive contribution by the husband.  He submits that the combined effect of these factors outweighs any argument which the husband might advance based on the principles of sharing and/or needs.  Mr. Turner has referred me to certain passages in the cases of Miller and McFarlane [2006] A.C. 618, MacLeod v. MacLeod [2009] 1 F.L.R. 641, Clarke v. Clarke [1999] 2 F.L.R. 498 and North v. North [2008] 1 F.L.R. 158.

48. From the decision of MacLeod, Mr. Turner relies in particular on Baroness Hale, para.41:

"The question remains of the weight to be given to such an agreement if an application is made to the court for ancillary relief.  In Edgar v. Edgar, the solution might have been more obvious if mention had been made of the statutory provisions relating to the validity and variation of maintenance agreements.  One would expect these to be the starting point.  Parliament had laid down the circumstances in which a valid and binding agreement relating to arrangements for the couple's property and finances, not only while the marriage still existed but also after it had been dissolved or annulled, could be varied by the court.  At the same time, Parliament had preserved the parties' rights to go to court for an order containing financial arrangements …"

"The same principles should be the starting point in both.  In other words, the court is looking for a change in the circumstances in the light of which the financial arrangements were made, the sort of change which would make those arrangements manifestly unjust, or for a failure to make proper provision for any child of the family.  On top of that, of course, even if there is no change in the circumstances, it is contrary to public policy to cast onto the public purse an obligation which ought properly to be shouldered within the family."

49. Turning to Mr Le Grice's submissions.  I start by acknowledging that Mr Le Grice has conducted this case with great skill and judgment and, in particular, sensitivity, having regard to the issues which have had to be addressed during the course of the hearing.  Of the three broad principles identified by the House of Lords in Miller and McFarlane, Mr. Le Grice rests his case on that of needs.  He submits that the husband's needs result from the marriage and not, as was submitted by Mr. Turner during the course of argument, from the husband's conduct.  The husband has, Mr. Le Grice submits, been effectively financially dependent on the wife for the whole of the marriage and, having little wealth at its outset, his current financial needs arise from the marriage.  Accordingly, Mr. Le Grice submits, absent the husband's conduct, the husband would have received a substantial financial award on the determination of the marriage having regard to the other s.25 factors. 

50. Mr Le Grice accepts that the husband's admitted conduct is conduct which it would be inequitable to disregard.  However, he submits that a number of the factual allegations relied on by the wife are not established by the evidence.  Further, he submits that a number of the allegations do not constitute conduct which it would be inequitable to disregard.  As to the 1993 agreement, Mr. Le Grice submits that, in any event, this agreement should not be enforced having regard to the fact that the marriage continued for a further 14 years.  Further, he submits that it cannot be used to reduce the husband's award further than it is reduced as a result of his other admitted conduct.  Mr. Le Grice rightly submits that the husband's conduct must be balanced with the other s.25 factors, in particular the length of the marriage, the husband's contributions during the marriage, his age and his needs.  In conclusion, he submits that the balancing exercise does not result in the award pointing, as he says, to zero; rather, he submits, it points to an award of £500,000, including the husband's half-interest in the jointly owned property, as being a fair outcome.

Assessment of the Witnesses
51. I found the wife to be a sincere, honest witness who is clearly deeply affected, traumatised even, by the consequences of the husband's conduct.  I also found the wife's two children impressive witnesses.  They both gave their evidence in a calm, clear manner, although they, too, have clearly been traumatised by the husband's conduct.  I have no doubt that they were doing their best to give me, and indeed gave me, truthful evidence.  When considering their evidence, I have carefully considered whether they have or might have, individually or collectively, reviewed and rewritten any part of the history of the marriage in the light of what they now know. 

52. I did not find the husband a satisfactory witness.  I do not consider it part of my function to judge him as a person, but I agree with the description of him being manipulative.  I formed the clear impression that he was not being wholly truthful and I treat his evidence with considerable caution.

53. The evidence does not, in my view, establish that the husband made any significant financial contributions during the marriage.  I do not consider that the matters relied upon by him had any significant positive effect on the value of the former matrimonial home or the wife's investments.  However, I do not consider that this is a significant finding, as there are many marriages in which one spouse will have made no, or very little, financial contribution.  This does not mean that they are treated by the court as not having made substantive or substantial contributions during the course of the marriage.  In my view, the weight to be applied to the Husband's contributions is better considered in the context of his conduct, i.e. under s.25(2)(g) rather than under s.25(2)(f).  I also do not consider that Mr. Turner's submissions in this respect materially add to the weight to be attached to the fact that the wealth in this case is almost entirely derived from the wife's family.

54. (i) The 1993 Agreement:
Mr. Turner submits:

"The potential consequences of holding the husband to the agreement, that he freely entered into on a fully informed basis, are precisely what was foreseen.  There have been no changes in the circumstances in the light of which that agreement was reached.  Furthermore, those consequences cannot be characterised as unjust when they result from the husband's own behaviour."

55. Mr. Le Grice submits that the passage of time and, what he submits has been the consequent prejudice to the husband in that his needs have increased rather than diminished, mean that the agreement should not be enforced.  He submits that the 1993 agreement was designed to facilitate reconciliation.  It achieved that objective and the marriage continued for a further 14 years.  In contrast, the agreement in the case of MacLeod was entered into when the marriage was, as subsequent events showed, almost at an end.  The postnuptial agreement would not have been enforced 14 years after it was entered into as the husband would have been prejudiced by the passage of those 14 years.  His needs would have increased rather than diminished.

56. In my view, the 1993 agreement is a significant factor to which I should attach significant weight.  The husband received advice before agreeing to the terms of that agreement.  He clearly also fully understood the potential effect of the agreement, namely that, although it would not be binding as such on divorce, it might well, as a result of its existence and terms, lead to the husband receiving no financial award from the wife.  It is interesting to note that, in his oral evidence, the husband sought principally to rely on the effect of his criminal convictions as justifying my departing from the terms of the agreement. 

57. My analysis of the effect of the agreement is as follows.  But for the husband agreeing in 1993 to the wife's terms, the marriage would not have continued.  This was the basis on which the marriage continued.  The marriage came to an end in 2007 solely, as the husband accepts, because of his criminal behaviour.  It is this which brought the marriage to an end and which has resulted in the husband being able to make a claim under the Matrimonial Causes Act 1973.  These factors outweigh, and in my judgment significantly outweigh, the fact that the marriage continued for a further 14 years from 1993.  Accordingly, as I have indicated, this agreement in the circumstances of this case should be given significant weight.

58.  (ii) The Husband's Criminal and Other Conduct:
The other elements of the husband's conduct require me to address the factual allegations which have been relied upon by the wife as set out in her schedule.  The husband, as I have already indicated, has been convicted of 15 offences the nature of which clearly constitute conduct which it would be inequitable to disregard.  I do not accept the husband's attempt to exculpate himself, in part, by seeking to assert that his plea of guilty in respect of one of the offences does not reflect his actual guilt. 

59. Allied to these convictions are other elements of the husband's conduct which, in my judgment, it would be inequitable to disregard - the husband's conduct in sending indecent photographs, as he accepts, of two of the grandchildren to another person over the internet; in asserting in his communications with others over the internet that he had sexually abused the grandchildren; and in naming those grandchildren and other family members in such communications.  This applies even in respect of those parts of these communications which were fantasy, rather than based on fact, because, as Mr. Le Grice accepts, even as fiction, the wife and her family have had to suffer the consequences of knowing that the husband has said these things to others and also of being unsure where fact ends and fantasy begins.  This is not to take into account matters which I have not found proved; i.e. that much of what the husband has said on the internet may well be fantasy.  It is to take account of the impact of his behaviour on the family and on the marriage.

60. I am also satisfied that the husband behaved inappropriately towards the wife's daughter, as she described, when she and the husband were in Paris.  I accept her evidence to the effect that she has a very clear recollection of this incident and reject the husband's assertion that it seems "totally improbable".

61. I propose to deal with the other conduct allegations relied upon by the wife relatively summarily.  I am not in a position to find that the husband sexually or indecently assaulted a relative of his.  I also do not find the allegations referred to in paras. 7, 8 and 9 proved.  The evidence does not satisfy me that the husband's motivation for marrying the wife was as alleged.  I can well understand how and why the wife considers that her whole marriage to the husband was a sham, but the evidence does not persuade me that the husband had ulterior and malevolent motives for marrying her.  I am also not satisfied on the evidence that the allegations in para.18, in respect of minors, and para.19 are proved.  As to the other allegations concerning the husband's behaviour towards the wife's daughters and her friends, I accept, as he does, that it was inappropriate.  However, I am not, many years after those events, in a position to determine whether it was sexual misconduct or was otherwise sufficiently reprehensible for it to be conduct which it would be inequitable to disregard.  The other allegations, in paras.12, 13, 14, 15 and 18, save as referred to previously in this judgment, are established by the evidence but they do not, in my view, materially add to the wife's conduct case.

62. The husband's conduct was undoubtedly the grossest breach of trust.  It was a gross breach of his obligations and responsibilities as a husband, as a step father and as a step-grandfather.  It was wholly destructive of the marital relationship and of the family life which resulted from the marriage in 1983.  All of the wife's and her family's memories of that relationship and of that marital life have been fractured and sullied as a result of the husband's behaviour.  They now view that history with anxiety and distress, and justifiably so.  The consequences of the husband's conduct were made palpably evident by the oral evidence of the wife and her children.  It is also clear that the adverse consequences of that conduct will potentially continue for many years into the future. 

63. As Mr. Le Grice sensibly concedes, the husband's conduct is manifestly conduct which it would be inequitable to disregard and, in my judgment, it is a factor which weighs very heavily in the s.25 balance.

The Husband's Needs
64. The husband will undoubtedly have financial needs following his release from prison.  Subject to the impact of legal costs, he will have the sum of £100,000 representing the value of his interest in the jointly owned property.  I am also satisfied, on the evidence, that he is likely to receive a very significant amount from his mother's estate.  It is clear to me that the husband's assertion in his first statement, to the effect that his mother's house was soon to be sold, was untrue.  This is clearly demonstrated by the fact that the house has not been sold and by the husband's more recent assertion which is limited to his mother being obliged to consider selling her home.  It is also contradicted by his sister's evidence.  I am satisfied, as I have said, that the husband is likely in the foreseeable future to receive a substantial sum from his mother's estate.  These assets together would, in my view, provide the husband with sufficient money either to rent or to purchase a modest property.  He will receive a state pension which, although in the context of this case, is a very modest income, will enable him to meet his basic living expenses.

65. As both counsel have submitted, I must stand back and weigh all the s.25 factors and in particular those factors to which I have just referred.  Mr. Le Grice does not submit, as I have indicated, that the husband is entitled to any share of the wealth in this case.  This is not a case in which the principle of sharing, as identified by the House of Lords in Miller and McFarlane, applies.  He bases his case firmly on the principle of need. 

66. I accept Mr. Le Grice's submission that, absent conduct, the husband would have been likely in this case to have received a substantial capital award to enable him to meet his financial needs at a level reflective of the standard of living enjoyed during the marriage.  The central issue in this case is whether the husband's conduct, as referred to in this judgment, is such that, having regard to my conclusion that it is conduct which it would be inequitable to disregard and to which great weight should be applied, it would be fair for the husband to receive no financial award from the wife and, if not, what award would be fair.  In my view, the answer can be simply stated.

67. The circumstances of this case are such that, in my judgment, it would be inequitable for the wife to be ordered to make any financial provision for the husband.  The factor to which I have given the most weight, namely the husband's conduct - consisting of the incident in Paris, his abuse of his grandchildren and other related matters, and the 1993 agreement – is such that it would not be fair for me to make any award in the husband's favour, beyond the payment to him of £100,000 in return for the transfer by him to the wife of his interest in the jointly owned property.  This factor outweighs the factors relied upon by Mr Le Grice and is the dominating feature of this case which dictates the outcome.  I have also taken into account the fact that almost all the wealth in this case has been inherited by the wife and that, as a result, there is no marital property as referred to in Miller and McFarlane.

68. When I balance all the s.25 factors together and, in particular, balance the husband's conduct (in all its forms) against his contributions and his needs, these latter factors, in my judgment, carry very little weight at all.  As to his contributions, any contributions which the husband made during the marriage are very substantially, if not entirely, negated by his conduct.  As to his needs, the husband will, in my view, have sufficient resources to enable him to meet his needs at a level which is reasonable, having regard to the circumstances of this case.  Even if I am wrong about that, in my judgment, an award which would enable the husband to meet his needs at a higher level is not justified by reference to the s.25 factors.  When those factors are weighed in the balance, their cumulative weight points firmly to the husband receiving no award from the wife at all.

69. In arriving at this conclusion, I am not punishing the husband twice for the same offences.  I am applying the discretionary exercise required of me by s.25 of the Matrimonial Causes Act 1973 and coming to what, in my judgment, is a fair result.