Marston v Moor
[2013] NZHC 2249
•30 August 2013
NOTE: PURSUANT TO S 35A OF THE PROPERTY (RELATIONSHIPS) ACT 1976, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B TO 11D OF THE FAMILY COURTS ACT 1980. FOR FURTHER INFORMATION PLEASE SEE THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CIV 2010-404-004221 [2013] NZHC 2249
BETWEEN MARSTON Plaintiff
ANDMOOR Defendant
Hearing: 11 - 21 February 2013
Counsel: J H Hunter & J I Hawker for Plaintiff
D R I Gay for Defendant
Judgment: 30 August 2013
JUDGMENT OF KEANE J
This judgment was delivered by on 30 August 2013 at 5pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
Solicitors:
Walker Associates, Auckland
A C Wright, Auckland
MARSTON v MOOR [2013] NZHC 2249 [30 August 2013]
[1] In late July 1998 Ms Marston and Dr Moor1 entered into an agreement recording that they had been living in a de facto relationship for several years; that they had entered the relationship with independent property and means; that they wished to keep their property separate then and in the future, and that they wished to contract out of any then impending extension of the Property (Relationships) Act
1976 to de facto couples.
[2] In October 2009, when they separated finally, their agreement remained in effect, despite the fact that property rights in de facto relationships had become subject to the statutory relationship property regime on 1 August 2001. It states that any agreement entered into before that date governing the status, ownership or division of property, whether existing or in the future, was to remain in effect, as if there had not been that change to the law.
[3] That statutory presumption assumes, however, that the agreement entered into was and remains valid, according to the ordinary principles of contract law; and the agreement Ms Marston and Dr Moor entered into, she contends, is invalid because she entered into it unwillingly and to her disadvantage as the direct result of Dr Moor’s duress or undue influence; and that, as he knew and took advantage of, she was then so vulnerable that the agreement has to be set aside as unconscionable.
[4] Dr Moor contends in response that Ms Marston entered the agreement of her own free will and that they had affirmed it in 2001 and 2007 when they took advice as to its effect. Throughout their relationship, he contends, they adhered to the agreement. They kept their property separate or held it through companies or in defined shares. She affirmed it in that way also. Ms Marston, he contends, has delayed bringing this case. Though they separated in September 2009, she did not apply until 2010. The agreement stood unchallenged for some 12 years.
[5] As I shall say in a moment, the 1998 agreement is simple enough in concept, but the issue whether it was vitiated from the outset could not be more completely disputed. Ms Marston and Dr Moor disagree as to when they began their relationship
together, what its character was, why they entered into the agreement, and with what
1 These are not their real names.
independent legal advice if any, whether it did actually govern their property relationship and whether they ever affirmed it. Also in question is the nature of their relationship from a psychological standpoint. Was it, as Dr Moor contends, a relationship of complete equals? Or was it, as Ms Marston contends, one in which he dominated her and exploited her vulnerability?
[6] It is against that background that I must decide whether Ms Marston is entitled to the declaration she seeks that the agreement is invalid and of no legal effect. On that issue hinges her further application for a division of property under the Property (Relationships) Act 1976, which also lies in this Court.
Agreement and related issues
[7] The agreement, dated 31 July 1998, in its recitals and operative part, which I have set out in an annex to this decision, is both concise and clear enough. But Ms Marston and Dr Moor not merely dispute how they came to enter into it. They dispute the extent to which it reflected reality then or ever.
[8] The recitals begin by stating that on 31 July 1998 Ms Marston and Dr Moor had been living together for ‘several years’. That is the first point at issue. Ms Marston contends that their relationship began as early as October 1994, while Dr Moor contends that it began no earlier than March 1996.
[9] The underlying issue is whether on 31 July 1998 the relationship had existed for three years. If it had, and if as has happened since the statutory relationship regime did eventually extend to de facto relationships, they might on 31 July 1998 have been potentially subject to the equal sharing presumption. The length of the relationship also goes to whether then Ms Marston had any legitimate expectation of a share of Dr Moor’s property. In these ways, it goes to whether, as Ms Marston says, she entered the agreement only as a result of Dr Moor’s pressure.
[10] Secondly, the recitals say, as at 31 July 1998 each was employed and self sufficient. Each had entered the relationship with independent means. Each had kept their property separate. Neither had any expectation of any interest in the property of the other. Neither claimed the benefit of a constructive trust. The operative clauses
are consistent. Each was to retain any property to which they had legal title and any chattel they then possessed. More generally, each was to retain any other property in which they had a beneficial interest, as if they had never lived together.
[11] Ms Marston says that on 31 July 1998 that was not the reality. Their then Epsom home, purchased in August 1995 in Dr Moor’s name, was in reality purchased by them both. She had contributed very significantly. It was after all their home. She had an equitable interest. Dr Moor stands by his legal title and contends that during the first six months Ms Marston was his tenant.
[12] Thirdly, an operative clause says that, before entering the agreement, they had made full and further disclosure to each other of all their property. Dr Moor maintains that they had. Ms Marston says that she did not then know the full extent of Dr Moor’s property. Complicating that issue is that there is no schedule to the agreement setting out the property each then held or its value.
[13] Fourthly, the recitals say, Ms Marston and Dr Moor knew that the statutory property regime might soon extend to de facto relationships like theirs and, if it did, and even if they married, they did not wish that regime to govern their property relationship. They wished that to be governed by their agreement, which they agreed also they would only ever vary in writing.
[14] Any property they purchased together, the operative clauses say consistently, was to be held by each according to the shares in which they took it, or according to the sum each had contributed to its purchase. Each was to take personal responsibility for their own debts and to indemnify the other. Dr Moor contends that throughout their relationship that is how they held their property. Ms Marston disagrees.
[15] Fifthly, an operative clause states that, before they entered the agreement, they had each taken independent legal advice; and the agreement was executed as if it were a relationship property agreement. Their signatures were witnessed by lawyers, who certified that they had advised as to its effect and implications. Dr Moor says he received the advice he needed. Ms Marston says she did not. Her
signature was witnessed and certified to by a lawyer, she says, only as a forced formality.
[16] The sixth and final issue arises from the fact that the agreement was executed and did stand unchallenged for almost 12 years. Did Ms Marston affirm it by entering into it? Did she affirm it by complying with it? Did she affirm it explicitly twice as Dr Moor says?
Duress, undue influence and unconscionability
[17] The law as it relates to duress, undue influence and unconscionability is stated definitively in New Zealand, certainly as to duress, in the Spycatcher case, Attorney-General for England and Wales v R.2 These three causes of action, the first at common law and the two remaining at equity, come into play whenever a contract is said to have been entered into as a result of an imbalance of power and advantage, especially when that imbalance is said to have been illegitimately exploited.
[18] Ms Marston contends that the agreement must be set aside on all three bases and, in principle, that is certainly open. In the Spycatcher case the Court said that it is neither logical nor desirable to distinguish between these causes of action, except perhaps as to remedy. They should be seen as a 'consistent whole'.3
Duress
[19] Duress, the remedy at common law, permits a contract to be avoided unless it has been affirmed, not just in the extreme case where there is an absence of consent, but where consent is not given freely and genuinely. In the Spycatcher case the Court said:4
All cases of duress involve the existence of pressure causing the party under that pressure to enter into a contract which, but for the existence of the pressure, would not have been entered into. The pressure can be to the person or to economic interests and can also involve social, professional or moral elements. The pressure may be direct or indirect, and its impact requires an examination of the circumstances in which the party under
2 Attorney-General for England and Wales v R [2002] 2 NZLR 91 (CA).
3 At [30].
4 At [61].
pressure is situated as a result of the pressure.
[20] The Court said that whether there has been 'such compulsion of the will' will depend on whether the pressure is legitimate or illegitimate and whether the person subject to the pressure has or has not had any practical choice. As the Court said:5
The starting point must be that the law recognises people generally act under some degree of pressure in making decisions affecting their commercial and other interests. In all duress cases the Court must consider whether the pressure under which the plaintiff was acting should be regarded as legitimate or illegitimate and, in that respect, the nature of any alternatives reasonably open to the plaintiff will be of major importance.
[21] In Pharmacy Care Systems Ltd v Attorney General the Court of Appeal summarised in seven propositions the law of duress in New Zealand law as it had become:6
First, there must be a threat or pressure. Secondly, that threat or pressure must be improper. Thirdly, the victim’s will must have been overborne by the improper pressure so that his or her free will and judgment have been displaced. Fourthly, the threat or pressure must actually induce the victim’s manifestation of assent. Fifthly, the threat or pressure must be sufficiently grave to justify the assent from the victim, in the sense that it left the victim no reasonable alternative. Sixthly, duress renders the resulting agreement voidable at the instance of the victim .... Seventhly, the victim may be precluded from avoiding the agreement by affirmation.
[22] The Supreme Court declined leave to appeal that decision, but said that the law as to duress was stated definitively by the Privy Council in R v Attorney-General for England and Wales.7 More recently, in McIntyre v Nemesis DBK Ltd the Court of Appeal described the seven Pharmacy Care propositions, not as elements of duress, but as 'legal propositions of relevance to duress'.8
[23] That case turned on the three issues which apply equally here.9 Did Dr Moor make any threat against Ms Marston or exert illegitimate pressure on her? Was Ms Marston, as a result, coerced into entering into the agreement? If Ms Marston did
enter the contract under duress did she later affirm it?
5 At [62].
6 Pharmacy Care Systems Ltd v Attorney General (2004) 2 NZCCLR 187 (CA) at [98].
7 R v Attorney-General for England and Wales [2003] UKPC 22, [2004] 2 NZLR 577.
8 McIntyre v Nemesis DBK Ltd [2010] 1 NZLR 463 (CA) at [22].
9 At [25].
[24] Whether pressure is illegitimate depends on the nature of the pressure and the nature of the demand.10 Thus:11
The illegitimacy of the pressure may lie in the illegality of the actions threatened or ... may be associated with the illegitimacy of the particular threats in the context in which they were made.
[25] Coercion, the Court said in Nemesis, can be difficult to define. But it does not require that the will of the one alleging duress have been overborne by the other, or be ‘psychologically crippled’.12 It does require that he or she have submitted out of
‘the realisation that there is no practical alternative’.13 The Court also affirmed its
statement in Pharmacy Care:14
Whether there as a reasonable alternative will depend on all the relevant circumstances, including the characteristics of the victim, the relation of the parties, and the availability of professional advice to the victim'.
[26] Finally, there remains the issue whether, by entering into the agreement without apparent protest, having apparently taken independent advice, and having not taken any step afterwards to avoid it, Ms Marston then or later affirmed.15 Duress can be negated by affirmation in those ways, but not if it is attributable to continuing illegitimate pressure.16
Undue influence
[27] Undue influence can be established, either by proving actual undue influence or by proving a relationship and a transaction from which undue influence is able to be inferred. It has this in common with duress. It involves 'the exercise of pressure, directly or indirectly, by the stronger party on the weaker party to enter into the
impugned transaction.'17 That pressure, however, may be of 'broader scope' and it
does not require 'illegitimacy'.18
10 Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC
366.
11 Haines v Carter [2001] 2 NZLR 167 (CA) at 189.
12 McIntyre v Nemesis, above n 8, at [64].
13 At [64] - [66].
14 At [67], quoting Pharmacy Care Systems Ltd v Attorney-General, above n 6, at [96].
15 At [68].
16 Haines v Carter, above n 11, at [116].
17 Attorney-General for England and Wales v R, above n 2 at [70].
18 At [70].
[28] Actual undue influence must be proved affirmatively.19 To prove undue influence it is not enough to establish that a person has signed ‘however reluctantly, being persuaded that it is the right thing to do’.20 He or she must have signed without the will to resist, as a result of the ‘wrongdoer's importunity’.21 In a fuller sense,
‘undue influence’:22
...generally involves such moral pressure on the plaintiff to sign that there is domination by a wrongdoer of the mind and will of the complainant so that the mind of that latter becomes a mere channel through which the wishes of the former flowed.
[29] Presumed undue influence first requires that there be a relationship giving rise to a presumption of trust and confidence. There must then be a transaction calling for explanation in the light of that relationship. If there is 'the evidential onus shifts to the defendant to demonstrate the absence of undue influence.'23
Unconscionable bargain
[30] In the Attorney General case the Court said that:24
For a bargain to be characterised as unconscionable, and thus able to be set aside, there will necessarily be: (1) serious disadvantage on the part of the weaker party known to the stronger party; and (2) the exploitation of that disadvantage by the stronger party in circumstances amounting to actual or equitable fraud. Associated with (1) and (2) will usually, but not necessarily be: (3) some procedural impropriety, established or presumed, and attributable to the stronger party; and (4) a substantial inadequacy of consideration.
[31] To be unconscionable a bargain does not require a relationship in the sense that undue influence does. Nor illegitimate pressure like duress. What it does require is an imbalance of power, and for the weaker person to suffer some special disadvantage that the stronger person knows of and takes advantage of. ‘The
essential question is whether in the particular circumstances it is unconscionable to
19 Royal Bank of Scotland v Etridge (No 2) [1998] 4 All ER 705 (CA) at 712.
20 Attorney-General for England and Wales v R, above n 2, at [77].
21 At [77].
22 Attorney-General for England and Wales v R, above n 2, at [77] quoting Royal Bank of Scotland v Etridge (No 2), above n 19, at 712.
23 At [72].
24 Attorney-General for England and Wales v R, above n 2, at [89]
permit the stronger party to take the benefit of the bargain.’25 To qualify a special disability must be:26
... a condition or characteristic which significantly diminishes a party’s ability to assess his or her best interests. Likely characteristics of this kind are ignorance, lack of education, illness, age, mental or physical infirmity, stress or anxiety.
This particular case
[32] Before I come to the seven issues particular to this case, outlined earlier, I should first say that it assists Ms Marston’s application in all three of these causes of action that, when they entered into the agreement, and in the years afterwards, she and Dr Moor were in a de facto relationship; a relationship to which the trust and confidence should have been inherent, but in which she could have been vulnerable
to undue influence.27
[33] Everything depends, however, on the circumstances in which and Dr Moor entered into the agreement and, if he did put pressure on her, just what it was. If all he did was to say that he would not continue their relationship unless she entered into an agreement, and that is why she entered into it, that cannot be enough by itself. In Harrison v Harrison,28 a case concerning the distinct issue whether a contracting out agreement, entered into just before a married couple resumed living
together after a time apart, involved ‘serious injustice’ under s 21J of the Property
(Relationships) Act 1976, William Young J said:29
It will almost always be the more affluent party who wants a contracting out agreement and it will often be the case that the other party only signs the agreement given the implications for the relationship if he or she declines to do so.
[34] In that case the Court declined to find that had been ‘serious injustice’ even though the wife entered the agreement plainly reluctantly. At equity and at common
law ‘serious injustice’ is not called for. If Ms Marston entered into this present
25 Gustav & Co Ltd v Macfield Ltd [2007] NZCA 205 at [30].
26 At [30].
27 Andrew Butler (ed) Equity and Trusts in New Zealand (2nd ed, Thomson Reuters, Wellington,
2009).
28 Harrison v Harrison [2005] 2 NZLR 349; (2004) 24 FRNZ 30 (CA).
29 At [90].
agreement subject to duress or undue influence, or she was so vulnerable that it is unconscionable, that will suffice. But then the distinct issue arises whether by entering into it apparently after advice, and by apparently complying with it without protesting afterwards, she affirmed the agreement. Again a contrast is called for.
[35] In Gemmell v Harlow,30 in which I set aside a very similar contracting out agreement on the three grounds relied on here, that relationship had subsisted between 1992 and 2004, except for 11 months apart in 1997 – 1998. The agreement itself was entered into in 2001 in circumstances I found to be dubious. In 2001 Ms Gemmell had an unquantified legitimate expectation by way of constructive trust. After 2001 there was no suggestion she ever affirmed.
[36] In this case, by contrast, the relationship began at the earliest in July 1994 and ended in 2009. Any legitimate expectation Ms Marston had in July 1998 must have matured in less than three years, the circumstances under which the agreement was entered into are identifiable and the agreement subsisted for 12 years without protest. This is a very different case.
First issue - beginning of relationship
[37] The first issue, whether as at 31 July 1998 the relationship of ‘several years’ had begun as early as October 1994 or no earlier than March 1996, as I have identified, goes to whether it was then a three year relationship, what Ms Marston’s actual or potential rights to share in Dr Moor’s property then were, and how vulnerable he then thought he was.
Section 2D factors
[38] This issue is to be assessed against the factors set out in s 2D of the Relationship Property Act, which go to the issue when and for how long a couple are to be deemed to have been ‘living together as a couple’. Those factors, which are not exclusive, are highly indicative:
(a) the duration of the relationship:
30 Gemmell v Harlow (2006) 25 FRNZ 887.
(b) the nature and extent of common residence: (c) whether or not a sexual relationship exists:
(d) the degree of financial dependence or interdependence, and any arrangements for financial support, between the parties:
(e) the ownership, use, and acquisition of property:
(f) the degree of mutual commitment to a shared life: (g) the care and support of children:
(h) the performance of household duties:
(i) the reputation and public aspects of the relationship.
[39] Indicative though these factors are, they are not determinative. As Asher J said in L v P (Division of Property),31 '... the central plank of a de facto relationship is the parties living together.' The difficulty in this case is that, in the first instance, Ms Marston and Dr Moor lived partly together and partly apart; and when they met for the first time in July 1994 at a 'Table for Six' in Parnell, Auckland, they were quite differently placed.
Relative initial positions
[40] Ms Marston was then aged 38. Her marriage had ended some two months before. She was working fulltime teaching college economics and accounting and studying for a commerce degree in management studies and labour relations. She and two of her three children, aged 14 and 11 years, were living in rented property. She and her husband were negotiating a relationship property agreement that they entered into on 7 October 1994.
[41] Dr Moor, aged 50, was and always had been single. He was a psychologist and academic, then employed in a senior role in a government department in Wellington where he spent three to five days a week. He owned a property in Epsom, which he rented out, but where he kept a flat. He had three investment properties in Auckland and a half interest in a fourth. He had two investment properties in
Wellington.
31 L v P (Division of Property) [2008] NZFLR 401 at [44].
[42] Ms Marston and Dr Moor agree that their relationship became fully intimate soon after they met. They differ as to what, if anything, that implied.
Early commitment
[43] Though Dr Moor spent three – five days a week in Wellington, Ms Marston says, by October 1994 they were effectively living together. In Auckland he kept his clothes at her home. They spent their weekends together. He began to ‘father’ her children. In January 1995 he joined her in a property venture she and her brother in law had been planning. They spent their Christmas holidays together at her family's houses in the North.
[44] Dr Moor accepts that he did spend two or three nights a week with Ms Marston, when he was in Auckland. But, he says, he still retained his Epsom flat. Even after he purchased their Epsom home in August 1995, he says, he maintained that degree of independence. He did not move in with Ms Marston and her children until March 1996. He also had divided loyalties.
Divided loyalties
[45] Ms Marston, while still in the north with her family in January 1995, attempted to contact Dr Moor. She then discovered he was seeing another woman in Wellington. The following weekend Dr Moor told her he had been seeing this woman since October 1994. Ms Marston became very upset. She called their relationship off.
[46] They reconciled within two weeks after Dr Moor sent her flowers and a card promised to end his Wellington relationship. In February 1995 they resumed their intimate relationship fully after each had undergone negative HIV testing. But Dr Moor kept up his Wellington relationship until August 1995, and only gave it up then when Ms Marston rediscovered it, and again called their relationship off.
Epsom home purchase
[47] According to Ms Marston, Dr Moor’s Wellington relationship also
complicated the purchase of their Epsom home in which she and her children began to live in August 1995, initially with two flatmates, until March 1996, when her flatmates moved out and Dr Moor moved in completely.
[48] On 29 April 1995, when she signed the agreement for sale and purchase of the property, on behalf of Dr Moor ‘or nominee’, he was in Wellington. He countersigned over the weekend. Later he replaced that agreement with another, which he alone signed and he took sole title. But Ms Marston contends that this did not reflect the reality. Before the auction they had agreed they would bid up to
$600,000. Each would contribute $150,000 and they would borrow the balance. She got the property for $580,000 with a deferred settlement date, 27 August 1995, to coincide with Dr Moor’s planned return to Auckland. They were to purchase together.
[49] In July 1995, Ms Marston says, she discovered Dr Moor had continued his Wellington relationship. She again became very upset and concerned about the possibility of a sexually transmitted disease. She again told Dr Moor that their relationship was over. That, she maintains, was when Dr Moor said he would purchase by himself. They reconciled and in August 1995 moved in together, though Dr Moor had yet to clear his flat.
[50] Dr Moor denies this. He says he retained his flat in a real sense until March
1996. Only then did he commit himself fully to their relationship. It had always been his intent to buy the Epsom property by himself. That is clear from the agreements for sale and purchase and he granted Ms Marston a 12 month tenancy from 25
August 1995; a tenancy Ms Marston never signed and disputes.
Pregnancy and related procedures
[51] On 2 June 1995 Ms Marston saw her general practitioner, who noted that Ms Marston said she felt pregnant and was ambivalent about it. Ms Marston’s evidence is that then or soon after she told Dr Moor. He said that if she decided to keep the baby he would end their relationship.
[52] On 5 September 1995 Ms Marston saw the colleague of her general
practitioner. According to the notes taken that day Ms Marston said she did not want to carry on with her pregnancy. She had three children. Her relationship was not stable and her job was good. She wanted a tubal ligation. She was referred to a specialist.
[53] Ms Marston says that Dr Moor took her to the surgery that day and, though he waited in the waiting room, he told her what to say. Dr Moor accepts he may well have accompanied Ms Marston. He denies attempting to influence her. But on 11
September 1995 he did accompany her when she saw the specialist to whom she had been referred.
[54] In his letter that day to her general practitioner, the specialist said this:
She came with her man today. She is now aged 39 years old and finds herself six – seven weeks pregnant. She is quite sure she does not wish to have a further child and together they do not wish to have children. She is depressed and concerned about her future methods of contraception.
... she would like a tubal ligation and I have given her some information about that. Provided they are clear in their minds I will do the termination for them next week and ligate her tubes with the laparoscope at the same time.
On 21 September 1995, the specialist reported that Ms Marston had undergone both procedures two days before.
[55] In January 1996, I should add to be complete, and altogether distinctly, Ms
Marston underwent a laser cone biopsy after an abnormal cervical smear in late
1995. She was told that there was a one in 20 chance of the disease recurring within five years. She underwent checking three monthly for some time.
Conclusions
[56] The de facto relationship, I find, cannot have begun as early as October 1994. Nor could it have begun as late as March 1996. It began, I find, in September 1995 at the latest.
[57] In July 1994 the relationship may have been fully intimate. But whatever Ms
Marston may have hoped for, Dr Moor was not fully committed. At that time he was
still spending much of his week in Wellington, as he did until September 1995. Also his loyalties were clearly divided until he then left Wellington finally. Until then he was involved in two relationships, not one.
[58] Though in August 1995 Dr Moor completed purchase of the Epsom property, and Ms Marston and her children moved in, that was at best indicative. He kept his flat until March 1996. He also prepared a tenancy agreement for Ms Marston. Her bank statements record weekly payments of $400 to him as rent. Though she says that is not to be taken literally, she did have two flatmates until March 1996. On this issue, I accept Dr Moor’s evidence, which is also consistent with the agreements for sale and purchase.
[59] That said, I find also that Dr Moor only purchased the Epsom property to further his relationship with Ms Marston. It was not merely an investment. It was in itself a significant link. Nor did it stand alone. By then, and in order to reconcile with Ms Marston, he had quit his Wellington relationship. Furthermore, I find, he played a pivotal part in Ms Marston’s decision to undergo the September 1995 medical procedure.
[60] I do not accept that Dr Moor merely accompanied Ms Marston to see her general practitioner on 5 September 1995. He may have waited in the waiting room. But, I find, when she was examined, she expressed Dr Moor’s wishes as much, if not more than her own. He wanted to continue his relationship with her. He did not want to become a father and that was decisive. This became graphically clear, I find, at the meeting with the specialist.
[61] As the specialist said on 11 September 1995, he clearly saw them as a couple. While Ms Marston told him she did not wish to continue with the pregnancy, and was concerned about contraception because she did not have wish to have a further child, it was not merely incidental that Dr Moor was there. Clearly, she spoke for him and, clearly, the specialist thought that. When he told her he could terminate her pregnancy and render her permanently sterile in a single procedure, he clearly saw that as their decision.
[62] In involving himself to such a degree in this issue of birth and fertility, so fundamental to Ms Marston’s life and future wellbeing, I find, Dr Moor demonstrated graphically the extent to which he and Ms Marston were then committed to a relationship contingent on that decision. She only elected to undergo both procedures because that is the price she had to pay in order to secure their relationship. Dr Moor, I find, understood that to be so and required it.
[63] As at 31 July 1998, I find therefore, they had been living in a de facto relationship for almost three years and I do not see that as coincidental. It explains, I find, why they then entered into the agreement, because that also was of paramount concern to Dr Moor. The issue remains what part he played. An equally important issue is as to the state in which Ms Marston then was.
Second issue - execution of agreement
[64] In early 1996, Ms Marston says, after Dr Moor moved into their Epsom home he first spoke to her about a contracting out agreement. He concern was that the law might soon require equal division of de facto property. She was unenthusiastic. She then suffered poor emotional and physical health and had concerns about her children. He did not pursue the point.
[65] Dr Moor also recalls first raising in 1996 the need for an agreement defining their property rights, but a few months after he moved into the property. He recalls that Ms Marston said she was not interested in his money and did not see any need for an agreement. He agrees he did not then pursue the issue.
[66] Ms Marston next recalls Dr Moor raising the issue in April - May 1997, when she took him out to dinner for his birthday. He told her, she says, that within a few months they would have been living together for three years, that the law was going to change, and that they needed to enter into an agreement. She said she did not want to, but from that point he began to pressure her.
[67] In August 1997, Ms Marston says, she was to travel to Europe to see a daughter, then living with an Italian family. Dr Moor was to accompany her. He refused when she would not enter into an agreement. She went only because her
daughter was unwell. She feared that, when she returned, he would have moved out. He denies he ever intended to travel with her to Italy or ever intended to move out. The evidence of a friend of Ms Marston’s, which I accept, however, suggests Ms Marston’s fears were real.
[68] They do agree that at the beginning of 1998 Dr Moor again spoke of the need for an agreement. Ms Marston says that even then she still did not want one. She had read a little about the proposed change to the law herself but she was preoccupied with her job, her family and her health. She hoped the issue would go away. Dr Moor disagrees.
[69] Dr Moor was concerned because he had significant property and Ms Marston had not. He was also concerned that she spent too freely. He was more conservative. She was by then a senior manager in a large national company. She was on a good salary, but she spent it. By then she had bought a bach he helped to renovate. To buy a nearly new Audi car, she had borrowed $30,000 and he thought that extravagant. He drove an old station wagon. In April 1998 she shouted him a holiday in Hawaii
for his 54th birthday.
[70] His evidence is that there was also this immediate need for them to define their relative property rights. They had begun negotiating the shared purchase of a Princes Wharf apartment they were to purchase through a company they later formed. This negotiation, which preoccupied them between February – July 1998, is clear on the evidence.
[71] On this issue, I find, the evidence is plain. Dr Moor wanted to enter into a contracting out agreement. For whatever reason, and she has never clearly said why, Ms Marston did not. It was Dr Moor who took the initiative.
Engagement of lawyer
[72] The agreement was prepared by the Auckland lawyer, who was acting on their joint flat purchase. Before then he had been Ms Marston’s lawyer. But it was Dr Moor who approached him on 25 March 1998 and on the following day sent him this letter:
Further to our telephone conversation about joint/individual ownership of property yesterday. ... [we] have each tried listing our individual possessions, see attached schedules.
However we each feel that it may be better, and easier in a sense, to simply list any properties or belongings that we would like to own jointly and equally, rather than attempt to accomplish this by excluding all the other belongings we each own individually.
Thus could we not develop something along the lines of:
Despite our currently living in a de facto relationship, We, the undersigned hereby agree that we will each continue to retain full and individual ownership of all belongings that we currently and at any future time possess in our individual names, unless we specifically add the item to our list of jointly owned belongings.
Is this possible?
Then we could simply draw up a list of what belongings we agree are to be held as jointly owned, and we would update this list once a year (say).
Essentially we are both content to retain individual ownership of our own existing belongings, and to consider any new acquisition in terms of our individual or joint ownership thereof. Hence although we are each reasonably aware of the other’s existing belongings, neither is overly concerned with what the other currently owns.
[73] Dr Moor says that he sent with this letter a list of his own assets but not that of Ms Marston. He noted on his copy of the letter that she wanted to list her own assets. He says she saw that note but did not complete her list. Either he or she, he says, must have gone back to the lawyer and asked whether a simple agreement would suffice.
[74] Ms Marston denies ever seeking Dr Moor’s list of assets until 2009. To the extent that the letter was one in which she apparently joined, she says, it is misleading. It was from Dr Moor alone. So too, when on 2 July 1998 the lawyer sent to them, addressed to them both, the agreement he had devised, she says Dr Moor got that letter. She did not.
[75] In that letter, the lawyer said, contracting out agreements were more normally entered into by couples thinking of marriage, or were married and either living together or about to separate. He had drafted their agreement assuming they were
‘living together in a de facto relationship working to establish clear right to certain
property’. The lawyer then also:
In this instance you have chosen to seek to reverse the manner in which this is accomplished. It is usual in both matrimonial property agreements and de facto property agreements to list the assets owned by each party and declare the separateness of those assets ... so that there can be no confusion or dispute ... the listing of the assets also makes clear that the provisions of the Matrimonial Property Act where applicable in requiring full disclosure of assets to one other have been satisfied.
[76] The lawyer expressed reservations about the fact that they had elected not to make full disclosure. That could be important, he said, if the agreement were ever deemed a matrimonial property agreement, or the statutory regime ever extended to de facto agreements. He then said this:
The law relating to property sharing and de facto relationships has in the past relied upon the common law and in particular that relating to constructive trusts. In general the case law on this subject has tended to deal liberally with a partner who has lived for several years with another in assuming that the partners between them have done or not done things in consideration for the growth of the assets used by them during cohabitation been for joint benefit somewhat like matrimonial property under the Matrimonial Property Act.
[77] As to the share that a de facto partner might expect in equity, the lawyer said:
In general the claimant de facto partner has received less than they would have got under the Matrimonial Property Act but trends have been towards them receiving at least something from the combined assets. Where de facto partners’ relationships have continued over a lengthy period of time e.g. ten years or more, in those circumstances an even more liberal view that been taken.
[78] The bill then before the House, the lawyer said, was likely to be passed in the next few months and once it was they should review the agreement. He added this:
It should also be reviewed periodically to see whether your personal positions have changed. It should also be reviewed if you decide to formalise your relationship by marriage. In order for this agreement to be validated for the future one or other of you needs to obtain legal advice on your legal position. I look forward to hearing from you shortly.
[79] Whether or not Ms Marston saw this letter, and Dr Moor says he gave it to her, at that time, she says, she was especially vulnerable. On 7 July 1998 her youngest child, her son, was admitted to hospital with suspected meningitis. He stayed there for 10 days. She stayed with him overnight. Also, I understand Ms Marston to say, at about this time she telephoned the lawyer and asked him to advise her. She said he could not. He told her he was advising Dr Moor. She would have to
take advice elsewhere. The lawyer does not recall the telephone call Ms Marston speaks of but accepts it may well have happened.
[80] I accept that it did. Though he did not keep a file note and, I find, his time sheets are unhelpful, he did say in his letter that he could only advise one of them. That may seem neutral but the agreement he sent them showed that he was to witness and certify Dr Moor’s signature and that the lawyer to witness and certify Ms Marston’s signature was left blank.
Ms Marston’s signature
[81] On a Monday in late July or early August 1998, Ms Marston says, just as she was leaving for Wellington, where she was working in difficult circumstances, Dr Moor gave her the two copies of the agreement the lawyer had sent them, and perhaps as he says, the letter. He pressed her, she says, to sign before a lawyer in Wellington that day.
[82] In Wellington, Ms Marston says, she went to a lawyer with whom she had worked in the national company then employing her. She went to his home and stayed for perhaps 10 – 15 minutes, while the taxi waited outside. She asked him to sign and certify the agreement. He had not seen it before and when he baulked she broke down. She told him that she did not want to sign the agreement but had no choice. Dr Moor would end their relationship. Her life would not be worth living.
[83] Ms Marston does not remember what the lawyer asked her or what advice he gave her. She only recalls that he agreed to witness her signature and to certify the agreement. When he had done so, she took the two signed and certified copies back to Auckland. That evening she told Dr Moor that, though she had not received advice about the agreement, she had signed it because she had no choice.
[84] Dr Moor’s evidence is that when Ms Marston returned she was somewhat depressed about her work. He denies that she told him she had signed the agreement without proper advice and without choice. He was reassured that they could then invest together, uncompromised by the statutory regime. On 31 July 1998 he signed the agreement before the lawyer who had prepared it, who then certified it.
[85] Two months later, Dr Moor recalls, Ms Marston went to Queensland on holiday, taking her two younger children. She left him a note telling him that she would meet him at Brisbane Airport on 6 October. She said 'you will recognise me easily - I will be the one with the tan and the relaxed smile'. She agreed she said this. She was relieved Dr Moor had stopped harassing her.
Lawyer’s evidence
[86] The lawyer, who witnessed and certified Ms Marston’s signature, said in evidence that he had worked with her before then for several years in the national company then still employing her, he as an in-house counsel, she as a business manager. He kept no file note of their meeting. He opened no file. He did not charge her for his services. He has the most general memory of their meeting.
[87] Ms Marston told him, as he recalls, that she and her partner were in a de facto relationship. He does not remember whether he asked how long they had been together. He was aware that changes in the statutory regime were mooted and might extend to de facto relationships. He was aware of her rights in equity by way of constructive trust.
[88] He does not recall seeing the agreement before she arrived. He only saw it once she arrived. He made no contact with the lawyer who had prepared it. She did not ask him to. He learned nothing of her circumstances or those of Dr Moor. He did not see any financial statements, certificates of title, bank statements or anything of that kind.
[89] After reading agreement, the lawyer said, he thought it to Ms Marston’s disadvantage and ‘found it intriguing and unusual that anyone would enter into an agreement like that’. He said to her something like this, ‘Why is this going on? What is the problem? I don’t see how its in your interests to be signing this agreement. I don’t think you should be signing it at all.’
[90] Ms Marston told him, he says, that if she did not sign it her relationship would cease, to which he responded that this was no reason for her to sign it. At that point, as he recalls, their meeting became ‘somewhat emotionally laden and it
reached a point where it was time for both our sakes for it to conclude’. He
witnessed her signature and certified the agreement.
[91] The lawyer told me that he thought the agreement to Ms Marston’s disadvantage because she was foregoing existing equitable and potential statutory rights. He witnessed it and certified it despite his reservations only because they had been involved together in:
many business dealings with some very high profile companies in the business world and my knowledge of her was that she was a very astute business operator who understood contracts very well ... I believed that because of her experience in the commercial world, she could understand the explanation I had given and despite the fact that there was emotional aspects, that unless I had a strong reason to do so I should not be asking her to leave my office.
Conclusions
[92] Ms Marston, I find, entered into this agreement very reluctantly and only because that was the only way in which she could secure her relationship with Dr Moor. That she signed the agreement before a lawyer, I consider, was hardly more than a formality. Had the lawyer not known her and not known of her financial acumen, I am sure he would have declined to witness her signature or certify that he had advised her.
[93] If this had been an agreement under the statutory regime, which is prescriptive as to a valid agreement, that alone might conceivably have been a ground to set the agreement aside. But it was an agreement entered into outside the statutory regime despite its form and, at most, I find, this evidence goes only to whether Ms Marston entered the agreement on a vitiating basis. The lawyer did tell Ms Marston that the agreement was to her disadvantage and only assisted her because she was determined to enter into it despite that. And I am satisfied that she did so then understanding what she was doing.
[94] Despite her disclaimer, I find she knew well enough what the effect of the agreement was, even without full advice. At that time she was involved in contract negotiations of a much more complex order. This agreement was comparatively simple and its purpose right to the forefront. Despite her disclaimer, I am also
satisfied she knew certainly generally what property Dr Moor then had and on his evidence she had prepared for him a property schedule for tax purposes. She clearly enough knew what property she possessed herself.
[95] I find also that beyond insisting that he would quit their relationship if she did not enter into the agreement, and insisting that she enter it at the end of July, just as they were about to complete three years living together, Dr Moor did not go further. The choice was one that Ms Marston had to make.
[96] Unsatisfactory though that choice was and the process by which it was given effect, I do not consider that at the time she entered into the agreement she was manifestly under undue influence or duress or, as I shall say shortly, in such a state of vulnerability that any pressure Dr Moor subjected her to made the agreement unconscionable.
Property relationship
[97] Equally material is that at the date the agreement was entered into Ms Marston and Dr Moor held their property separately consistent with the agreement. As I have already said, the legal title to their home lay with Dr Moor and while Ms Marston may then have had a right in equity to a share, she relinquished that right by entering into the agreement.
[98] In 2009 when their relationship ceased, moreover, they continued to hold their property separately. Ms Marston owned one property and Dr Moor owned six in his own name and several more with others. They had interests in three others. They held two through companies in which they held shares. They held one as tenants in common in defined shares. That, furthermore, was the pattern in the many property purchases they made during their relationship. Ms Marston bought several in her own name, as did Dr Moor in his. They purchased properties through companies. When they sold properties the proceeds remained with them individually, except perhaps for the proceeds of sale of their home.
[99] There are some discrepancies. In one instance Ms Marston appears to have bought a property for Dr Moor for tax reasons and when it was sold he took the
proceeds. In another instance the sale and purchase agreement was in Ms Marston’s
name but Dr Moor was the purchaser.
[100] An instance on which Ms Marston relies was when a company was formed in which they each took half the shares, Dr Moor purchased a property and transferred it to the company, enhancing the value of Ms Marston’s shares to that extent, and then she later transferred 80 per cent of her half shareholding to Dr Moor to recognise his equity in the company, retaining only a 10 per cent share. Ms Marston claims this transaction to be an exception to the 1998 agreement because she transferred her shares for no equity, but the reality is she did so to reflect the relative investment each had made and that is consistent with their agreement. Each retained a separate interest reflecting what each had contributed.
[101] Again, in another instance, Dr Moor purchased a property for $1.02M and paid $600,000 up front but Ms Marston took title with him as a tenant in common with an equal share. There is a debate as to why that was and what other contributions she had made. The fact remains that they each took a distinct interest as a tenant in common, again consistent with their agreement.
[102] This pattern appears to me so invariable that it cannot have been accidental. I find that in their property relationships they did adhere to the agreement that Ms Marston now wishes to have set aside. On that basis alone it is open to Dr Moor to contend that she affirmed the agreement until they separated finally in 2009. That apart, Dr Moor contends they each affirmed the agreement explicitly.
Specific affirmation
[103] They first affirmed the agreement, Dr Moor contends, on a 1991 review. Their lawyer obtained an opinion from a barrister, dated 26 September 2001, because on 1 February 2002 the statutory property regime was to extend to de facto relationships. The review reassured Dr Moor that the agreement remained effective.
[104] Ms Marston says that she knew nothing of that review until years later and I accept that to be so. The most that can be said is that in March 2002 Dr Moor was willing to make advances to a fashion business in which she was involved and took
shares himself. He may not have done so otherwise.
[105] In November 2007 Ms Marston wished Dr Moor to advance to her then business $250,000 and he was unwilling to do so unless she confirmed after advice that their agreement still stood. On 7 November 2007 the lawyer who had acted for them throughout wrote to another Auckland barrister saying this:
My understanding is that ... (Dr Moor) wants written confirmation from her that what he considers his separate assets remain in that position. I want her to have independent advice on her position before she agrees to that, but if you are able to confirm that the position is as I expect then she can sign such an acknowledgement. As part of that acknowledgement it may also be appropriate to revamp the agreement to bring it in line with current practise as part of the acknowledgement by the parties of their present position.
Although there was not full disclosure of asset positions before execution of the existing agreement, I believe the parties now have full disclosure between themselves as evidenced by the schedule of assets.
[106] On 20 November 2007, in a file note she made that day, the barrister recorded her opinion that Ms Marston had entered into the July 1998 agreement without sufficient advice, a fact she had regretted. She reviewed with her what had transpired before they entered into that agreement and what had transpired since.
[107] The outcome was that Ms Marston did not then elect to challenge the agreement but was advised that if her relationship with Dr Moor ended she could take advice at that point about whether it could be set aside. The barrister advised her that in the meantime there was no point in taking any step that might reinforce it. Despite that, the barrister did not dissent from the 2001 opinion.
[108] That advice, though privileged, came into the hands of the lawyer then still acting for Dr Moor. The barrister says she never gave it to him and Ms Marston says she never gave the opinion to Dr Moor. She considers that he gained access to it illegitimately in their home.
[109] Be that as it may, Dr Moor did then advance $250,000 to her business underpinned by a deed of debt, dated 27 November 2007. But for Ms Marston confirming the validity of the agreement, he would not have done so. It remains to add that in February 2009 he advanced to her a further $48,000 to repay her
outstanding credit card debts, of which some $12,000 - $16,000 remains outstanding.
[110] In 2007, I am satisfied, Ms Marston did affirm the agreement on advice and that is consistent with the way in which she and Dr Moor had held property during their relationship. The only issue that there can be is whether then and earlier she was vulnerable to Dr Moor’s enduring influence to the extent that she describes. It is her case ultimately that, despite appearances, theirs was an unequal relationship in which she was the victim.
Ms Marston’s capacity
[111] Early in the relationship, according to Ms Marston, though Dr Moor was generally charming to outsiders, visitors and friends, he was often bad tempered and moody and his moods were unpredictable. He could become very depressed and aggressive, especially after he had been drinking. Despite that she adored him, as he well knew. She found that life was easier if she simply agreed with him.
[112] According to Ms Trenberth, the psychologist engaged by Ms Marston to assess her psychological state she was also, before she entered into the 1998 agreement and afterwards, ‘particularly fragile’. As a result of her formative years, at the time she entered into her relationship with Dr Moor she was in a state of
‘pre-existing vulnerability’.
[113] It is Ms Trenberth’s opinion that in the relationship there were events within the relationship for which Ms Marston held Dr Moor accountable that must have been psychologically abusive for her. In those early years, most notably, Dr Moor was unfaithful to her and, despite his promise, continued to be. Ms Marston underwent the medical procedure in 1995 that resulted in the termination of her pregnancy and rendered her sterile.
[114] The effect on Ms Marston, as she reported it, Ms Trenberth also said, was consistent with depressive illness: tearfulness, the feeling that life was not worth living, difficulty in focus on work, loss of appetite, sleep disturbance and fear that Dr Moor might again be unfaithful. Also a series of stress related illnesses.
[115] The difficulty with this evidence is, however, that it relies largely on Ms Marston’s own account; and, in her critique of Miss Trenberth’s opinion, Dr Blackwell says, I consider correctly, that is an unsafe basis standing alone unsupported by independent and more objective evidence.
[116] There has to be a question, for instance, whether when they entered their relationship Ms Marston was as vulnerable from an early age as Ms Trenberth accepts she was. Ms Marston had been married for 19 years before she met Dr Moor and there is no issue as to the normality of that relationship. Nor did Ms Trenberth ask Ms Marston to undergo symptom validity tests or employ other objective measures to assess her personality and function.
[117] The unusual feature of this case is, moreover, that soon after they entered into their relationship, and throughout its length, Ms Marston held high managerial positions in a large national company. According to her own curriculum vitae, in the early years she was a capital program facilitator and a commercial and financial adviser. In 1998 she became a commercial manager responsible for annual operating and capital budgets of the order of millions of dollars. In 1999 she was lead negotiator in a $1B contract in Australia.
[118] That apart, in her personal life, even before she met Dr Moor, she was entrepreneurial. She and her brother in law intended then to enter into a venture. Throughout their relationship she was as engaged as Dr Moor was in property investment. She ran her own businesses with others, albeit without success. She was at ease in the market place.
[119] So, while I do accept and take into account that Ms Marston’s decision to terminate her pregnancy and to be rendered sterile is a decision she has regretted ever since, and I accept that Dr Moor’s infidelity to her must have been extremely distressing, the question remains what effect that could have had in 1998. To my mind it is implausible to suppose that these sources of distress would continue to have affected her so adversely then. It is even more implausible to suppose that they, and any other more general sources of stress for which Dr Moor is answerable on the evidence, could have accounted for the decisions that she made in the years after.
[120] In short, I do not find that the psychological evidence called for Ms Marston assists her. I find that despite the evident difficulties she and Dr Moor experienced, she did enter into the 1998 agreement, however reluctantly, because she wanted to secure their relationship; and that their relationship remained important to her until they separated in 2009.
Outcome
[121] I am not satisfied to the balance of probabilities that when Ms Marston entered into the 1998 agreement she now seeks to have set aside she did so under duress or undue influence, or did so in a state of particular vulnerability which Dr Moor knew of and exploited requiring that their agreement be set aside as unconscionable.
[122] I find that, however reluctantly, Ms Marston entered into the agreement to preserve their relationship, and that although she was not fully independently advised, she knew accurately enough what she was agreeing to. I find also she adhered to the agreement with Dr Moor in their property relationship, and that in
2007, having taken full informed legal advice, she affirmed the agreement and Dr
Moor advanced a significant sum to her business as a result.
[123] I decline Ms Marston’s application for a declaration that the agreement is invalid. As a result Dr Moor becomes entitled to an award of costs, as I consider at scale 2B. If that gives rise to any issue of principle Dr Moor is to file a memorandum within 10 working days of the date of this decision and Ms Marston within the ensuing 10 working days. Otherwise the award is for the Registrar to confirm, as are
any disbursements.
P.J. Keane J
31 JULY 1998 AGREEMENT
RECITALS
A. The parties have lived in a de facto relationship for several years and continue to do so.
B. The parties have throughout their cohabitation maintained separateness of ownership of property and neither has any expectation of sharing or having any right or interest in any property owned by the other.
C. [Dr Moor] has not paid anything or done or refrained from doing anything which he would consider was in the nature of creating an obligation by constructive trust or otherwise on [Ms Marston] to grant a share or interest in any of [Ms Marston’s] property to [Dr Moor].
D. [Ms Marston] has not paid anything or done or refrained from doing anything which [Ms Marston] would consider was in the nature of creating an obligation by constructive trust or otherwise on [Dr Moor] to grant a share or interest in any of [Dr Moor’s] property to [Ms Marston].
E. Each party is employed and self sufficient and entered the relationship with independent property and means.
F. The parties are aware of impending legislation which is likely to provide persons in relationships such as theirs with certain presumed statutory property rights similar to those provided for in the Matrimonial Property Act 1976 to the property of their partner. Both [Dr Moor] and [Ms Marston] wish to contract out of and rebut such future provisions and instead define their present and future rights contractually pursuant to this Deed.
G. The parties wish to record the incidence of property owned by each of them now and in the future.
H. The parties wish to record that in the event of their future marriage this agreement shall apply whether or not the parties marry.
OPERATIVE PART
1. The property owned by the parties shall be divided as follows:
1.1Land, company shares, bank accounts and all other property in respect of which the incidence of legal title may be recorded in writing shall vest absolutely in that person who at the date of this Agreement has the legal title to that property, provided only that any life assurance policy not expressly described, shall become the separate property of the life assured.
1.2Each chattel shall vest absolutely in that Party who at the date of this Agreement has possession of that chattel.
1.3Each other item of property shall remain with the party who is the existing beneficial owner of that property in each case to be determined as if the Parties had never been living together.
2.In the event that the parties purchase any property together in the future that property shall be held in the shares in which the parties record the incidence of ownership of that property and failing such record the shares shall be in the proportions in which the parties have contributed in money to the purchase, but such ownership of that property shall have no effect on the ownership of all other property of the parties.
3.No apportionment shall be made in respect of any interest dividends or other income or expenditure which may at the time of this Agreement have already been received or paid or have accrued due or be owing and each party shall take the property to which he or she may be entitled under this Agreement subject to such debts owed to third parties as may at the date of this Agreement be charged upon that property and shall indemnity the other party in respect of any liability which that other party may have in respect of such debt.
4.Each party shall do everything necessary and sign all documents necessary to give effect to this Agreement.
5.In consideration of the foregoing each party releases and discharges the other from all liability in respect of the assets vested in the other pursuant to this agreement and acknowledges that there is no constructive trust issue in respect of those assets.
6.1This agreement shall be bindings on the parties in all circumstances including bankruptcy, the taking of property and execution by creditors, separation (whether on one or more occasions), reconciliation, or the death of one or both parties.
6.2This agreement shall continue to be binding and to override and take precedence over any future legislation which is enacted which provides contrary presumptions of ownership in de facto relationships.
6.3In the event that the parties subsequently marry this agreement in the absence of any contrary written agreement or variation shall continue in force and operate as an agreement between the parties as between husband and wife pursuant to s 21(1) of the Matrimonial Property Act 1976.
6.4It is the intention of the parties that their respective positions as owners of property as reflected in this agreement shall only be varied where the parties agree in writing to such variation.
7.[Dr Moore] and [Ms Marston] acknowledge and agree that they have made full and fair disclosure each to the other of all Property and further that each of them had independent legal advice before
signing this agreement.
8.Each party shall bear his or own legal costs of and incidental to this agreement.
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