If one party to a marriage has an affair with someone else then they are obviously likely to feel very guilty for doing so. And they may try to make amends by making a gift to their spouse.
But what if, as is obviously likely, the marriage then fails? What is then the status of that gift?
The question arose in a recent Family Court case in London
The case concerned a couple who were married in 1998 and separated in 2020.
Perhaps the defining moment of the marriage took place in 2017.
The husband had an affair with another woman. It was only short-lived, and ended after about six weeks.
The husband told the wife about the affair.
There followed what the judge described as “a period of acute stress for the family”, with the husband’s former girlfriend embarking upon a campaign of public and private harassment, and stalking of both the husband and the wife.
The effect of this, said the judge, was difficult for the husband, but was acutely traumatic for the wife, being deeply unpleasant in its character and even leaving a residue of deep distress to this day.
And it got worse. The woman told the husband that she was pregnant by him.
Having taken advice as to what sum he would be likely to have to pay should the woman seek financial provision for the child, the husband transferred the same sum, £1m, to the wife.
In fact, the woman was not pregnant.
Perhaps unsurprisingly, the marriage subsequently broke down. Divorce proceedings were commenced and the wife made a financial remedies application.
The husband and wife did not agree as to how the court should treat the £1m gift.
The wife contended that it was a gift to her expressly to use as she wished, and made by way of partial amends for the husband’s misbehaviour. It would therefore be inequitable if she should be required now to share it with the husband.
The husband, on the other hand, argued that the court should treat it as one of the resources available to the wife, and that it should be shared along with the other matrimonial assets.
The judge agreed with the wife. He said that it was a payment made by the husband to the wife “to make amends” for his behaviour and its appalling aftermath. He accepted that the money was a matrimonial asset that was available for sharing, but the circumstances of its giving were highly relevant. There was no need for the husband to share in it, and it was fair to both parties that the wife should be entitled to keep it in its entirety, as was intended when it was given to her.
The full judgment in the case can be read here.
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