Post separation, it is often the case that parties remain emotionally and sometimes financially still intertwined. The recent case of MB v EB  EWHC 1649 (Fam) considers the impact of parties’ conduct when determining the length of marriage.
At a preliminary hearing, Cohen J was asked to determine the length of the parties’ marriage and consider the impact of a separation agreement entered in to years before the financial proceedings had been initiated.
The parties had met in 1999. At the time, the wife was a business woman from a wealthy family whilst the husband was an artist and part-time model. The parties had married in early 2000 and spent the following years living in England, Munich and Vienna.
In 2004, the wife was arrested and remanded in custody for a (disputed) period of time in relation to a scam for obtaining Austrian residency. Upon her release and seizure of her passport by the authorities, the husband requested a divorce. The wife refused and remained in Austria with husband returning back to England.
In 2006, the wife returned to England and the parties continued their “relationship”, albeit the husband referred to it as a period of “toxic co-dependency” and in fact had another partner. Whilst the parties disagreed about how frequently, it was agreed that the husband did continue to stay with the wife on occasion.
In 2008, both parties obtained legal advice but continued to communicate directly with one another. All correspondence at the time refers to the marriage having broken down. Eventually in 2011, a deed of separation was signed in full and final satisfaction of claims between the parties. At the time, both parties were represented by solicitors. The deed allowed for the parties to remain legally married which would enable the wife to secure British Citizenship whilst providing the husband with a lump sum of £245,000 to purchase a property along with a further lump sum of £35,000.
Subsequent to the agreement for a lump sum, the wife went on to buy the flat above the husband’s and paid him more than she was obliged to do under the deed of separation. The husband continued to reside with his new partner.
The relationship became strained and in 2017, the husband issued an application for financial remedy. The husband argued that the marriage had in fact ended in 2016; the wife argued it ended in 2004.
Following Mr Justice Williams in IX and IY  EWCH 3053, the Court had to identify a time at which the relationship had acquired sufficient mutuality of commitment to equate to a marriage, or in this particular case when that had ceased to be the case. It was acknowledged that marriages come in all shapes and sizes and would always be case specific. In this particular matter, the Judge noted that the parties had lived independently of one another, were financially independent and the husband was sexually involved with another partner. Notwithstanding the parties’ clear and enduring emotional and financial entanglement, Cohen J found that the marital partnership had ended in 2004.
When considering the validity of the separation agreement, Cohen J considered the cases of Radmacher v Granatino  2 FLR 1900 and Versteegh v Versteegh  EWCA Civ 1050. The husband argued that he should not be bound by the agreement as it was entered in to under threats/duress and undue influence/pressure due to the wife’s dominant position. The husband also argued that the agreement did not meet his needs.
The Judge concluded that although no financial disclosure took place, there was a clear understanding of the implications of the agreement and it had been intended by the parties that the agreement should govern the financial consequences in the event of divorce. On this basis, the Judge found there was no ground for vitiating that agreement save for a potential argument that it did not meet his needs. Whilst the husband’s “need argument” remains to be determined, the parties had spent c. £1,000,000 on litigation.
Whilst the facts of this case are extreme, it provides a startling reminder of the complexities of emotional ties within the context of matrimonial matters. Where the length of a marriage is in dispute, the Court will consider all the circumstances of the case, not simply the financial positions of the parties during the relevant times.