In March 2023 Mr Justice Moor handed down his judgment in MN v AN. The case is interesting for two reasons in particular: firstly, because the agreement was signed before the decision in Radmacher and, secondly, because of the pressure that the Wife contended she felt in relation to signing the agreement and the impact of the same on the agreement in question.
Following what is described as having been fairly protracted negotiations, the parties entered into an agreement in June 2005. Importantly for the case which the Wife ran at the Final Hearing, this was some time before the handing down of judgment in Radmacher in the Supreme Court in October 2010. As such, when the parties’ received legal advice in respect of the draft, there was no authority about which they would have been advised which confirmed that the agreement would be upheld in England and Wales. That being said, the Wife (who sought to ignore the terms of the agreement on the breakdown of her relationship with the Husband) was told by her solicitors when negotiating the agreement that she needed “to proceed on the basis that it would be upheld”.
When Mr Justice Moor dealt with this point in his judgment, he made clear that the fact that this pre-nuptial agreement pre-dated the decision in Radmacher could not be considered a vitiating factor; he went on to make the point that the agreement between Ms Radmacher and Mr Granatino was signed long before that case came before the Supreme Court. Importantly for couples who signed agreements prior to 2010, this case highlights the court’s willingness to uphold agreements (where they meet the criteria set out in Radmacher) regardless of when they were entered into.
The Wife also maintained that through their marriage, the Husband “behaved in a coercive and controlling manner towards [her]” and that in relation to the events surrounding the negotiation of the pre-nuptial agreement he called her a “gold digger” following which she was “shocked and traumatised such that she felt she had to acquiesce [and] she capitulated as she had no alternative”. The Husband accepted in evidence that the signing of a nuptial agreement was a condition of the parties’ marriage, but disputed the Wife’s version of events in relation to calling her a “gold-digger” as part of an argument about the agreement which is described in some detail by both parties in their oral evidence. The Wife also explained that during the marriage she was free to spend as she wished, this involved “the most luxurious holidays at vast cost” and, amongst other provisions, a “€90,000 offshore annual allowance…intended to be spent on clothes, shoes or bags”. Mr Justice Moor does make comment that the sort of financial arrangements that the Wife described are the absolute opposite of coercive and controlling behaviour.
The parties’ oral evidence explored in some detail the communications they had, both between themselves and via solicitors, as part of the negotiation of the agreement. Mr Justice Moor ultimately found that “the Wife was under pressure, but that is not sufficient. It has to be undue pressure”. Specially, the judgment in this case made clear that saying that there would be no marriage without a pre-nuptial agreement is not in and of itself something that would render an agreement unenforceable. It is clear from the judgment that “even if there was undue pressure, the existence of top-quality legal advice is a very strong countervailing factor.”
While the Wife in the case of MN v AN, contended for a much greater share of the parties’ combined wealth at the point of divorce, Mr Justice Moor’s judgment was one which awarded the Wife financial provision on the terms of the pre-nuptial agreement. The Judge concluded both that there were not vitiating factors and that, within the broad parameters of fairness, it was fair to hold the Wife to the agreement she had signed.
Where is the law of England and Wales on pre-nuptial agreements currently?
While nuptial agreement are not contractually binding, they can carry significant weight, as in the case of MN v AN. There are a number of criteria which increase the likelihood that the parties to an agreement will be held to its terms, namely that:
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Both parties should receive independent legal advice from a specialist family lawyer.
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The agreement should be entered into freely, i.e. without duress or undue pressure either from the other party to the agreement or third parties.
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The agreement should not prejudice the needs of any existing of future children.
- The agreement should be fair, both at the time of signing and also at point that a relationship breaks down. The Family Court’s discretion, however, is very broad and is impacted by the existence of a nuptial agreement such that fairness in a case in which a nuptial agreement is signed may well differ significantly from an assessment of what is fair in the same circumstances but without an agreement.
- The agreement should be entered into in good time ahead of the wedding.
- There should be an exchange of financial information (such that the parties have a full appreciation of the implications of the agreement on their position were the marriage to break down).
There are a variety of reasons why couples enter into nuptial agreements before they marry. For some, agreeing what will happen in the event of divorce while they are on good terms with their spouse is a way of avoiding future conflict and expense. For others, there is a desire to formalise an agreement to ring fence non-matrimonial property (including assets owned before the marriage or assets inherited of gifted to one party during the marriage). Whatever the reason may be, if you are interested in preparing a nuptial agreement (whether it be before or after a marriage) you should always seek specialist advice. You can contact our specialist family lawyers to discuss your circumstances by calling us on 020 3405 0060 or emailing us at contact@bortoftbell.com.