Prenups UKBlog Archive

09 February 2017
£2.7 million awarded to ex-wife of Lambretta millionaire 11 years after separation upheld on appeal, despite her delay and an alleged agreement between the couple settling their financial affairs.

Glenn and Nicola Briers married in 1984 and had three children, all now adults. They were both teachers. In 1988 Glenn Briers started a sports and streetwear business, initially operating from the garage in the former family home in the West Midlands, with start-up funds of just £81. He incorporated the business that same year, the 100 company shares being divided 99:1 between himself and his wife. In 1990 he left teaching, to concentrate on the business full-time. Nicola Briers continued to work as a teacher, helped in the business and looked after their three children.

The couple separated in 2002, when Glenn moved out of the former family home and Nicola's involvement in the business came to an end. She continued teaching and caring for the three children. At that time, the annual turnover of the company, Lydenford Ltd, was £1 million. By the time of the High Court hearing of Nicola's financial claims, Glenn's business had grown into a major fashion chain, including the well-known young fashion brands Lambretta and Vision, with a turnover of £30 million and outlets nationwide, including flagship stores in Birmingham, York, Belfast and London's Carnaby Street.

Between 2003 to 2005, there were protracted negotiations between the couple about the financial aspects of their divorce and their decree nisi of divorce was made absolute in 2005. Glenn claimed that an overall financial settlement had been concluded between them and that he was relying upon it when he paid Nicola a lump sum of £150,000 in 2005 and transferred the former family home (worth about £700,000 at that time) into her name, the following year.

In 2008, Nicola transferred her share in the company to Glenn. She also received a "salary"/spousal support of £10,000 a year, plus child maintenance. However, no agreement was signed and no court order was made settling their financial affairs.

In 2013 (11 years after the couple's separation, and eight years after their alleged agreement and decree absolute) Nicola made an application for financial remedy orders consequent upon their divorce. This was after her relationship with the partner with whom she had been in a relationship since the breakdown of the marriage had broken down and her teacher's salary had been reduced.

First instance decision:
The two main issues in the case were whether the couple had reached a concluded agreement settling their financial affairs and, if not, what a fair distribution would be, taking into account the wife's delay in bringing her financial application.

On 6 May 2015, His Honour Judge Rogers, sitting as a Judge of the Family Division of the High Court in Birmingham, ordered Glenn Briers to pay Nicola Briers a lump sum of £1.6 million, by four instalments spread over two and half years, and to transfer 25% of his Standard Life Pension, Standard Life Policy and Standard Life Shares to her. The judge held that the company was an undivided matrimonial asset and took account of the company's origin during the marriage and post-separation growth.

Nicola's award was worth £2.7 million and equated to 27-30% of the overall family assets, worth about £10 million at the time of the hearing, to reflect her delay in bringing her financial application.

It was conceded that Nicola's financial needs were met, so this was a sharing case. This percentage was held to be a fair discount from an equal division of the assets to reflect the delay, for which Nicola had no satisfactory explanation, other than the pressing demands of her everyday life, work and caring for the children. The judge accepted that had her relationship with her partner not broken down, she might never have made (or needed to make) any financial application.

The judge held that the couple had not concluded any agreement settling their financial affairs, primarily because Glenn had refused to provide the financial disclosure which Nicola had insisted upon before she would sign any agreement. His finding was dominated by his assessment of the oral and written evidence and his impression of the couple when they gave evidence at the hearing.

He formed robust views of the couple, their relationship and the dynamic between them. He preferred Nicola's evidence to Glenn's, who he found to be increasingly dismissive of his wife, evasive, unreliable and unconvincing. He found that Glenn was in psychological control and that Nicola had felt bullied and intimidated by him. Nicola had been insistent that Glenn needed to provide financial disclosure, which he never did. He had misled her about the ownership of a property he moved into after the separation, claiming that he was renting it. He even denied any recollection of a meeting which had clearly taken place between the couple and his solicitor in March 2005.;

Court of Appeal decision:
The Court of Appeal dismissed Glenn's appeal against the judge's decision. Sir Ernest Ryder, Senior President of Tribunals, delivered the judgement of the Court. Applying the principles enunciated by the Supreme Court in Radmacher v Granatino in 2010, the Court of Appeal held that the judge could not be criticised for concluding that Nicola had not entered into a full and final settlement with Glenn, since she did not have all the information material to her decision to enable her to enter into such an agreement. She could not have obtained legal advice about the agreement without full disclosure and she had consistently expressed her need for such disclosure before she came to an agreement.

In relation to Nicola's delay in bringing her financial application the Court of Appeal held that the judge had applied the Supreme Court decision in Vince v Wyatt [2015] correctly.

Comment:
In relation to marital agreements, this case is significant for its emphasis on the importance of both parties having all the information material to their decision whether to enter into an agreement, in order for any such an agreement to be upheld by the Court (applying Radmacher). It is also a reminder (applying Vince v Wyatt) of the importance of obtaining a Court Order dealing with the financial aspects of divorce in every case, since there is no limitation period in relation to financial applications in divorce. Also that delay in bringing such an application is prejudicial and may reduce or eliminate the financial provision awarded to the Applicant.

Briers v Briers [2017] EWCA Civ 15 Court of Appeal (Sir Ernest Ryder, Lady Justice Rafferty and Lord Justice Lindblom)

Maeve O'Higgins Family Law Partner, Burlingtons Legal | Email: maeve.ohiggins@burlingtonslegal.com, Tel: +44 (0) 207 529 5420

This blog is intended for general information only and should not be considered as giving advice in relation to any individual case nor be taken as applying to any particular case. No liability is accepted for any such use of the information contained.