CAROLINE HELY HUTCHINSON Barrister
Family, Divorce and Matrimonial Lawyer
Legal Advice and Efficient, Practical Help in Resolving
Matrimonial and Family Issues
Texan couple's post nuptial agreement allowed the W to elect to pursue financial remedies in divorce in preference to the compensation provided for in the agreement. However, had the agreement not allowed this, as on H’s interpretation, the judge would have found the PNA to be unfair and also that the W could not possibly have understood or been advised as to its import or she would not have signed it.
This case was an unsuccessful attempt by W to set aside post nuptial agreement on grounds of duress or undue pressure. Mr Cusworth QC sitting as a deputy High Court Judge reviewed the authorities, including Lord Phillips in Radmacher (formerly Granatino) v Granatino  UKSC 42, Ormrod J in Edgar v Edgar  1 WLR 1410 and Baron J in NA v MA  EWHC 2900.
The judge did go on to consider the fairness of the agreement for giving it due weight pursuant to s25, following Holman J’s dicta in Luckwell v Limata  EWHC 502 (Fam), including whether upholding it would leave W in a predicament of real need.
Mostyn J upholds a Dutch prenuptial contract on the parties' capital but which was silent as to marital acquest and maintenance. Satisfied the agreement was entered freely and it was fair to implement the terms as they were understood by the wife.
Also, W was not 'compensated' for being out of the job market - circumstances rare
Y v Y 2014 EWHC 2920
Roberts J found that the French agreement "seperations de biens" was affective to keep the parties' assets separate during marriage but was not undderstood to govern the situation on divorce
Mr Nicholas Cusworth QC found the prenuptial agreement did not provide for Husband's full needs but, as it was entered freely with an understanding of its effect, it would be upheld save in so far as meeting H's needs required the court to depart from its terms.
LAW COMMISSION RECOMMENDATIONS FOR QUALIFYING NUPTIAL AGREEMENTS
To date the Law Commission's recommendations for legislating for valid nuptial agreements, provided they comply with certain stipulations including disclosure and legal advice, have not as yet been implemented. However, agreements complying with these criteria gives the agreement the be chance of being upheld in the future.