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“Marital misconduct” Case summary: T v T [2020] EWHC 555 (Fam)

12th March 2020

Mr Justice Moor considered a wife’s claim for financial relief under Part III of Matrimonial and Family Proceedings Act 1984. For 13 years of the 25-year marriage, the husband hid his “second family”, who lived in Russia, from the wife. Moor J considered that this constituted “marital misconduct’ under s25(2)(g) of the Matrimonial Causes Act 1973. However, as the claim was needs-based, this finding was not reflected in an increase in the wife’s award. This deception was also relevant to a finding that a post-nuptial agreement was invalid.

The parties married in 1992, and had two children together. They were both Russian and had always lived in Russia. In 2003 the husband suggested to the wife that she and the children move to London. For the next 13 years the wife and the parties’ children lived in London. Meanwhile, the husband remained working in Moscow – although he visited London for a few days each month.

During Christmas 2016 the husband told the wife that he wanted a divorce. He told her he had been living in Moscow with a woman, with whom he had 4 children, for 13 years. The first of these children had been born in 2003, precisely at the time he had encouraged the wife to move to London.

The wife immediately issued divorce proceedings. Initially the husband avoided service. However, in Summer 2017 the husband appeared to engage in negotiations about a financial settlement. The wife therefore did not pursue her divorce petition. Unfortunately for the wife in October 2017 the husband’s solicitors told her solicitors that, without their knowledge, the husband had obtained a divorce in Russia. Although the wife had not received notice of these proceedings, she accepted the validity of the divorce. There was no financial provision made for the wife under the Russian divorce. As such, she applied for relief under Part III of Matrimonial and Family Proceedings Act 1984 (“MFPA”).

It also transpired that in 2011, when the parties were in Spain, the husband asked the wife to sign a Russian post-nuptial agreement – which she did. At the time, he told her the agreement was designed to protect his property in Russia from creditors. Had the agreement been given effect, all the wife would have received would have been a flat in Russia worth c.£400,000. Moor J described this agreement as “not worth the paper it was written on” [18] because: a) the wife had not received any legal advice; b) the husband had not provided disclosure; and c) most importantly, the agreement was signed at a time when the wife was being deceived by the husband about his second family.

In considering the wife’s claim, Moor J stated that the wife had been habitually resident in England and Wales since 2003 (there was therefore jurisdiction under s15(1)(b) of MFPA) and concluded that (under s16 of MFPA) it would be appropriate to make an order for financial relief [20-1]. First, the wife had a connection to England, but to no other country (other than Russia). Second, the wife would not receive any any financial benefit from any other country (namely Russia). Finally, although the husband had no property in England, he did have business interests in Spain which, albeit with difficulty, the wife could bring enforcement proceedings against.

Next, under s18(3) of MFPA, the S25 factors were considered. Moor J highlighted H’s litigation misconduct, namely deceiving the wife as to his intention to genuinely negotiate a financial settlement in Summer 2017 while simultaneously obtaining a divorce in Russia. However, Moor J also considered that H’s deception around his second family during the marriage constituted marital misconduct which it would be equitable to disregard (under s25(2)(g) of the Matrimonial Causes Act 1973) [25]:

“In my view, there is also in the history of this case marital misconduct which it would be inequitable to disregard, or which, in the language of now historical authorities, is both obvious and gross. For 13 years from 2003 to 2016 the husband kept the wife and their children well away from Moscow and cruelly deceived her as to his double life with another woman by whom he had had no fewer than four children, for all of whom he appears to have been (and still is) providing. Although that story is not unique, it is hard to imagine a more grave or more sustained assault upon a marriage, apart from severe abuse and/or criminal behaviour.”

However, this did not result in an increase of the wife’s award as the wife’s claim was based on needs.

As the husband had not engaged with proceedings and not provided disclosure, it was impossible to assess the true extent of his assets. Although Moor J was keen to guard against the “cheat’s charter” (16 (viii) NG v SG (Appeal: non-disclosure) [2012] 1 FLR 1211) and avoid granting the husband any benefit as a result of his non-disclosure, he set out that this was not a sharing but a needs case under Part III [31]. Moor J concluded that it appeared the husband owned: €2.25 million of shares Spanish companies; a flat in Russia worth c.£400,000.

The wife’s needs were assessed: a £2,250,000 housing fund; no spousal maintenance. Although Moor J stated that he had sympathy with the wife’s case for c.£1.7 million of capitalised maintenance, he found her to be suitably well-qualified and able to meet her own income needs. Moor J also ordered that, until lump sum was paid, the husband must pay the wife interim maintenance. Further, the husband was ordered to pay all of the wife’s costs on an indemnity basis to reflect his gross litigation misconduct [40]. Finally, Moor J refused to order that the husband’s shares in the Spanish companies should be transferred immediately to the wife as: a) the order was for a lump sum; and b) notice must be given to the partner in the businesses.

Florence Jones, Barrister, 1 Hare Court