N v N & Anor

Whether property constitutes an anti-nuptial settlement depends on the real substance of the arrangement and whether it provides continuing provision for one or both spouses in their capacity as such. The concept is construed broadly. A matrimonial home acquired before marriage in contemplation of the marriage may constitute an anti-nuptial settlement. The existence of an intervening tenancy does not necessarily alter that character where the tenancy is subordinate to the underlying trustee and beneficiary relationship and is substantially formal. Motive is irrelevant to the classification. The court may therefore vary the settlement under section 24(1)(c) of the Matrimonial Causes Act 1973.

The wife sought ancillary relief following the breakdown of the marriage. Before the marriage, the husband’s family trust acquired Brooklands, which the parties occupied as their matrimonial home. The property was held through an offshore company, with the purchase price funded partly by a mortgage and partly by trust monies.

The husband and trustees contended that the parties occupied the property only under an assured short-hold tenancy. The wife argued that the purchase was made in contemplation of marriage and created an anti-nuptial settlement capable of variation under section 24(1)(c) of the Matrimonial Causes Act 1973. The preliminary issue was whether the property arrangement was an anti-nuptial settlement.

1. The court declared that Brooklands constituted an anti-nuptial settlement capable of variation under section 24(1)(c) of the Matrimonial Causes Act 1973.

2. The statutory expression is not narrowly confined. The court must examine the real substance of the arrangement and ask broadly whether it made continuing provision for the husband, wife or child in their relevant family capacities. Motive is irrelevant.

3. The property had been acquired during the parties’ engagement and before their marriage as their intended matrimonial home. Provision of a matrimonial home was a continuing form of provision during the marriage and therefore had a nuptial character.

4. The later tenancy did not change that conclusion. On the evidence, it was largely created to satisfy the mortgage lender and operated as a subordinate and intermediate legal arrangement. The fundamental trustee and beneficiary relationship remained in place, and the settlement stood behind the tenancy.

5. The court declined to decide whether the tenancy could have been varied while it remained in existence, since it had ended. The question of how the statutory discretion should be exercised was left for determination in the High Court.