Nuptial agreements

The term ‘nuptial agreements’ covers pre-nuptial agreements, post-nuptial agreements and separation agreements. Since the Supreme Court decision in Radmacher v Granatino [2010] UKSC 42, the family court’s approach to such agreements in financial remedy cases has evolved. 

The four principal routes by which a nuptial agreement may be challenged in a divorce are: lack of legal advice; failure to provide accurate disclosure; duress; and, most commonly, that the agreement fails to meet the applicant’s needs.

The position was reviewed by Peel J in HD v WB [2023] EWFC 2 in which he noted that, as per Radmacher, legal advice is ‘desirable’ but is not essential. In Radmacher the Supreme Court stated that the court should give effect to a nuptial agreement that is freely entered into by each party ‘with a full appreciation of its implications’. An assertion that a party fully appreciated the terms of the agreement can of course be supported by them having had independent legal advice.

Peel J noted decisions in which a nuptial agreement had been upheld, notwithstanding the lack of legal advice (Charles J in V v V [2012] 1 FLR 1315 and the Court of Appeal in Versteegh v Versteegh [2018] EWCA Civ 1050). Peel J concluded that the absence of legal advice was not a vitiating factor or fatal to the status of a nuptial agreement.

Peel J concluded: ‘When considering the absence of legal advice, the court should… look at all of the circumstances, including whether the party had the opportunity to take legal advice, and whether the party had sufficient understanding of the meaning and consequences of the pre-nuptial agreement.’

In a similar vein to legal advice, the need to provide full financial disclosure does not fall within one of the Radmacher safeguards, but rather could be viewed as falling under the umbrella of a party having ‘a full appreciation of its implications’. Despite that, in BN v MA (maintenance pending suit: pre-nuptial agreement) [2013] EWHC 4250 (Fam) Mostyn J stated that the parties ‘will usually need to have made mutual disclosure’.

In TRNS v TRNK [2023] EWFC 13 the parties entered into a post-nuptial agreement, following on from the husband having provided voluntary disclosure. Citing Radmacher, Cohen J noted the following passage: ‘What is important is that each party should have all the information that is material to his or her decision.’

Cohen J also noted that just because a party had failed to pursue lines of enquiry, this did not absolve the other party of their duty to fully and frankly disclose their financial circumstances. Cohen J therefore found that there had been material non-disclosure by the husband.

In Radmacher the Supreme Court noted that the first question for the court will be whether any of the standard vitiating factors such as duress, fraud or misrepresentation is present. The Supreme Court went further by stating ‘… unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it. The court may take into account a party’s emotional state, and what pressures he or she was under to agree’.

Recent case law has, however, set a high bar in terms of undue pressure arguments. In MN v AN [2023] EWHC 613 (Fam), Moor J found that while the wife was under pressure, it was not undue pressure and therefore not sufficient to vitiate the agreement. He noted that there had been the ‘mother of all arguments’ between the parties, but there was a clear cooling off period before the agreement was signed.

Similarly, in the aforementioned decision of HD v WB, the parties signed the agreement on the day of the wedding, but that did not undermine the status of the agreement. Although there is a general principle that such agreement should be entered into at least 28 days before the wedding, it is not an absolute rule.

As Mostyn J acknowledged in Cummings v Fawn [2023] EWHC 830 (Fam), the usual argument which is advanced by a party seeking to demonstrate unfairness is that the nuptial agreement does not meet their needs. If a party has reasonable needs which cannot be met from their own resources, then they are in a predicament of real need.

Mostyn J did however acknowledge that in his earlier decision in FF v KF [2017] EWHC 1093 (Fam), a judge had an almost unbounded discretion within the needs principle. Mostyn J’s judgment in Cummings v Fawn includes a useful analogy, comparing a range of possible needs based upon books placed upon a bookshelf.

Similar approaches to needs-based arguments were taken by Peel J in HD v WB and Moor J in MN v AN.

In both judgments, a similar two-stage test was applied:

a.    Was the agreement Radmacher-compliant? In other words, were there any circumstances surrounding making the agreement which should eliminate or reduce the weight to be attached to the agreement? In both decisions, it was held there were no such vitiating factors; and

b.    Does the agreement operate fairly, having regard to all of the section 25 factors? In HD v WB it was held that the agreement did not meet the applicant’s needs fairly and a further award, in excess of the provision under the pre-marital agreement, was made in his favour. By contrast, in MN v AN, Moor J concluded that the agreement was not unfair and met the wife’s needs, although he accepted that the award in favour of the wife might have been more generous, if it were not for the agreement.

In summary, although there are circumstances in which a party may succeed in a challenge to a marital agreement, the key passage in Radmacher is that it must be assumed that the parties will be held to the terms of a nuptial agreement, unless there are circumstances which would justify the parties not being so held.

Andrew Newbury is a partner at Hall Brown Family Law, Manchester