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Divorce Settlements Must Respect Personal Freedom

Judges are generally averse to contracts, and particularly divorce settlements, that seek to place restrictions on individual liberty. In one case, the High Court effectively re-wrote heads of agreement that would have prevented a divorcee from relocating outside the UK with her young daughter.

The wife was in relatively low-paid employment whereas the husband was a scion of an extremely wealthy family. In the midst of divorce proceedings, they had reached heads of agreement whereby he would provide her with, amongst other things, a £2.1 million housing fund and £160,000 a year in maintenance. Judicial approval was required prior to the heads of agreement being finalised and becoming an order of the Court.

The parents’ dispute in respect of contact with their child had bristled with acrimony and, at the husband’s insistence, a condition had been included in the heads of agreement that sought to prevent the wife, who lived with her daughter in London, from obtaining a replacement property outside England and Wales until after the child had completed her primary education.

In challenging that condition, the wife’s lawyers pointed out that she was not a UK national; that her support network was not in this country, and that her peripatetic job might well require her to move abroad. The husband, however, argued that the restriction was necessary in order to guarantee a stable and secure home for his daughter during her early life.

The Court did not consider that it was the parents’ intention to tie their daughter to a country to which she had no family connection. It was distinctly possible that the wife would need to relocate, and to erect an obstacle in the path of her doing so would be entirely counter-productive and inimical to the child’s welfare.

In the circumstances, the Court ordered that the wife may not move outside England and Wales with her daughter without the husband’s agreement or the permission of the Court. The order would be sufficiently flexible to allow for more than one move and, in the event of such relocation, the Court would retain power to review housing and maintenance provisions in the order.