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IN THE FAMILY COURT

SITTING AT MANCHESTER



JUDGMENT

HIS HONOUR JUDGE BOOTH:

"On 23rd March 2014, Mr H returned home about 5.00pm. He was agitated and kept looking at his watch. I was in the kitchen cooking. He immediately asked me to open a bottle of wine, which I did, and by dinner time he had consumed the whole bottle. He wanted more wine with the meal, so I opened a second bottle. By 7.30pm we had finished dinner and he said, 'Right, sweetie, let's go up.' I went to clear the pots and he told me to leave them. Normally, we went to bed at 8.30 to 9.00pm. He insisted that I went up first which was a departure from what happened normally. Normally, he would go up first and I would make tea and biscuits for him.

11. I knew we were going upstairs for sex and that we would have sex. I got undressed and got into bed. Mr H then came up and undressed and got into bed. He began to nibble my neck and shoulder and arm. This was not unusual, but then this night he began to really bite me extremely hard. I had bruising to my arm. I told him he was hurting me and told him to stop but he continued. I tried pushing him away. He continued. By then I was crying. He then grabbed hold of my nipples and squeezed them really hard and turned them which was excruciatingly painful. I screamed. His hands were all over me. He was like an animal pawing. I told him that he was really hurting me. He then stuck his hand roughly between my legs. I put both my hands down to push him away and he simply threw my hands away. By then I was really sobbing. I looked into his face and became extremely scared. It was like he wasn't there. I'm a type 1 diabetic and I had recently been fitted within an insulin pump which was taped to my stomach with a needle going into me which delivers insulin. He was so rough and was ignoring my pleas to stop that I became fearful that he would dislodge the pump. I therefore turned on my side with my back towards him and drew my knees up to protect myself from the pump being pulled out. Whilst I lay on my side, the respondent anally raped me. Throughout this, I was crying and sobbing and saying, 'No' which he ignored. After he finished, I lay on my side crying and he asked me if I wanted to talk about it. I did not reply to him. I was still crying."

"There was not any consensual anal sex, or any sex that night because he had caused me so much pain from first getting into bed that no consensual sex, anal or otherwise, was agreed that night. He... He raped... He raped me that night. It was not in any way consensual in any way."

She was asked, "There was no indication by you that you did not consent at all," and she replied:

"I would think that by saying 'No' and shaking and crying and saying 'no' was enough to show him that I was not in agreement."

"Mr H came home and I was cooking dinner as I would every night. I poured Mr H a glass of wine which I did whenever he came home. He states that he did not drink heavily, but I attach at pages 23 to 49 exhibit SA1 a number of our receipts from during our relationship which show I would buy wine regularly as he had started drinking quite heavily following our marriage. He went to watch television and asked for another glass of wine. Before we started dinner he had drunk the whole bottle. We then ate dinner together and he told me to open another bottle of wine. After dinner, I was going to start washing up and he suggested that we go to bed as we often would after dinner. He says that I asked him who he wanted me to be and whether I should be Mary from the kitchen. This is categorically not true. I have never said that. I went upstairs before him and got undressed. He came up shortly after me and also got undressed. Ordinarily he would go up to bed first and I would bring him tea and biscuits. Once we were both in bed, he began nibbling my neck and shoulder but then began to bite really hard. I told him he was hurting me but he continued. I tried to push him away but I could not. I started to cry. He grabbed my nipples and twisted them very hard. He put his hand roughly between my legs. I tried to push him away again and he flung my hand away. I started to feel scared and panicky at that stage. I turned on my side primarily to protect the insulin pump that I had recently had fitted to my stomach. He then anally raped me. I have genuinely never experienced pain like it. I was crying and repeated for him to stop but he did not. I was petrified throughout the whole experience."

"Mrs H was in the kitchen preparing dinner. She had a glass of white wine and poured a glass of red wine for me. Red wine was a particular favourite of mine and she had purchased it that day. Whilst she was preparing the meal, I started to fondle her and feel her breasts. Jokingly, she said that I should stop messing around with the kitchen staff and suggested we go upstairs after dinner.

20. We had dinner at about 6.00pm and I had a second glass of wine during the course of it. At about 6.45pm, I asked Mrs H whether she still wanted to go upstairs and she said that she did and she asked me who I wanted her to be. She said that I could have anybody except Sharon and I replied that I would like to have Mary from the kitchen. She then asked me whether I wanted Mary to wear anything special. I replied that only a pair of little black knickers would be fine and with that, Mrs H went upstairs. I followed about 15 minutes later at about 7.00pm. She was in bed. She lay on her back facing the door with the covers pulled over to just below her breasts. I got into bed and she turned towards me and we kissed and fondled each other for a little while. She then turned sideways on to me and I had my arms around her and was also fondling her breasts. I nibbled her neck and shoulder and arm, and she asked me to hurt her. I knew she liked to have her nipples squeezed because she had previously told me and although it was a little painful, it gave her much pleasure and therefore I squeezed her nipples. She took hold of my penis and began to masturbate herself by rubbing the end of my penis against her clitoris. We had intercourse and she then climaxed. At no point was Mrs H sobbing, crying, or complaining that I was hurting her. I asked her to pass me the bottle of lubricant which was in the bedside cabinet on her side of the bed in the second drawer down. This is the oil she had bought on the internet so as to provide lubrication for anal sex. She reached down and took the oil out of the bedside drawer on her side of the bed and handed it to me (it was impossible for me to reach the lubricant from my side of the bed). I then oiled myself and gave her back the lubricant and then entered her anally and climaxed. It was a consensual act and at no point did the applicant ask me to stop. Had the applicant indicated that she did not want to have anal sex at any point, I would have respected that wish completely."

"It is not the first time the respondent has had any anal intercourse with me. The first time was on an earlier occasion in 2012. I made it clear I didn't like it and, in fact, I finished the relationship. Mr H begged to resume the relationship and I agreed and made it clear to him that I never wanted to have anal intercourse again. Following our marriage, Mr H began to seek to persuade me to have anal intercourse again. I refused on numerous occasions, but eventually in January I gave in. I found it a horrible experience and told him that I found it horrible. In fact, I needed to see the doctor because I thought he had damaged me. I told him I never ever wanted to do it again and he must not ask me again."

"Once again, you began to explain to me that I should be actively seeking another lady more suited than you to both my needs and lifestyle. You have now done this on three previous occasions over the past twelve months. However, on this occasion, you took the decision to pack up my bits for me for me whilst I was in the bathroom. You then presented me with a plastic bag and wished me, 'Good hunting' before escorting me to the door. This time I have decided to take your advice."

"You are a sexual deviant which has left me physically damaged due to anal sex, whilst I appreciate you have an erectile dysfunction which I have accommodated (I'm sure this is what your doctor friend is referring to when she said she could help you). I only went along with this to please you as I told you at the time I was unsure of this type of behaviour, I needed an Oscar not a Rada [sic] for my acting performance in bed."

She was challenged on the basis that that passage was a reference throughout to anal intercourse and indicated that anal intercourse had been a much more frequent occurrence than she was acknowledging.

"Painless rectal bleeding of Mrs H initially after defecation. Fresh blood not mixed with motion on wiping. After then, two further episodes after a shower when drying herself. No change in bowel habits. Examination of the patient of her rectum  no abnormalities detected. No blood. No masses. Suspected condition likely internal haemorrhoids. Reassure. Had a chat to patient. Anxious about bleed. Has had anal intercourse a few days ago."

"On 4th March 2014, [Mrs H] came to the Davyhulme Medical Centre with an episode of rectal bleeding. She told me she had had anal intercourse a few days prior to her visit here and she was a bit worried by the bleeding. I examined her bottom to see if there was any reason for the bleed and on examination I could not see any cause for concern or what may have caused the bleed. I did advise that it could have been internal haemorrhoids that may have caused this, but nothing looked of concern. I remember her being a little embarrassed about this, but her main aim was to make sure there was nothing more serious about the bleeding or that she had damaged anything. I printed a copy of my notes for this visit and have sent it to the officer."

"You are truly an evil man and I have suffered greatly by your actions."

Within four days of writing that sentence she was proposing that she married the man she was referring to.

"80. Where the ante-nuptial agreement attempts to address the contingencies, unknown and often unforeseen, of the couple's future relationship there is more scope for what happens to them over the years to make it unfair to hold them to their agreement. The circumstances of the parties often change over time in ways or to an extent which either cannot be or simply was not envisaged. The longer the marriage has lasted, the more likely it is that this will be the case. Once again we quote from the judgment of Rix LJ at para 73:

'I have in mind (and in this respect there is no real difference between an agreement made just before or just after a marriage) that a pre-nuptial agreement is intended to look forward over the whole period of a marriage to the possibility of its ultimate failure and divorce: and thus it is potentially a longer lasting agreement than almost any other (apart from a lease, and those are becoming shorter and subject to optional break clauses). Over the potential many decades of a marriage it is impossible to cater for the myriad different circumstances which may await its parties. Thorpe LJ has mentioned the very relevant case of a second marriage between mature adults perhaps each with children of their own by their first marriages. However, equally or more typical will be the marriage of young persons, perhaps not yet adults, for whom the future is an entirely open book. If in such a case a pre-nuptial agreement should provide for no recovery by each spouse from the other in the event of divorce, and the marriage should see the formation of a fortune which each spouse had played an equal role in their different ways in creating, but the fortune was in the hands for the most part of one spouse rather than the other, would it be right to give the same weight to their early agreement as in another perhaps very different example?'

The answer to this question is, in the individual case, likely to be 'no'."

81. Of the three strands identified in White v White and Miller v Miller, it is the first two, needs and compensation, which can most readily render it unfair to hold the parties to an ante-nuptial agreement. The parties are unlikely to have intended that their ante-nuptial agreement should result, in the event of the marriage breaking up, in one partner being left in a predicament of real need, while the other enjoys a sufficiency or more, and such a result is likely to render it unfair to hold the parties to their agreement. Equally if the devotion of one partner to looking after the family and the home has left the other free to accumulate wealth, it is likely to be unfair to hold the parties to an agreement that entitles the latter to retain all that he or she has earned."

[Judgment ends]