CAROLINE HELY HUTCHINSON Barrister
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Matrimonial and Family Issues
Texan couple, for tax reasons, had relinquished US citizenship and also entered into a post nuptial agreement 5 years into their 20 year marriage separating ownership of property. H worth around £144m. Holman J upheld the post nuptial agreement on the basis that by its terms it 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.
H’s financial contribution was not found to be of an exceptional and individual quality that deserved special treatment. The court could find only three decisions in which a ‘special contribution’ had been found: Sorrell v Sorrell 2005, Charman v Charman 2007 and Cooper Hohn v Hohn 2014.
Holman J also criticised the Bundles of some six lever arch files and said that judges should not rubber stamp departures from Practice Direction 27A
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 not find that the wife’s will had been overborne by the undue influence of the husband. She had been advised as to the unfairness but was motivated to sign it for her own reasons; this did not mean she did not act of her own free will.
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.
This decision of the Supreme Court analyses the situations in which a court would implement agreements reached between parties to a marriage. It recognises the autonomy of adults freely to enter informed agreements as to their finances and discusses the situations in which such marital arrangements will be upheld by the courts.
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.