NA v MA

A post-nuptial agreement does not oust the court’s jurisdiction in ancillary relief proceedings. It may carry substantial weight, but only after the court considers whether it was freely and fairly made and whether enforcing it would produce injustice. In a spousal relationship, the assessment of undue pressure or influence must recognise emotional interdependence, reliance and vulnerability. An ultimatum that makes signature the condition of reconciliation may overbear free will, particularly where the weaker party lacks financial independence and is under sustained emotional pressure. If the agreement is not implemented, the court must apply the statutory discretion under section 25 of the Matrimonial Causes Act 1973. Inherited wealth remains relevant to the assessment of fairness, but the claimant’s needs may justify recourse to it.

The applicant wife sought ancillary financial relief following the breakdown of a 12½-year relationship and marriage, with two young children. The husband relied on a post-nuptial agreement signed by the wife in March 2005, shortly after the discovery of her adultery, and contended that her claims should be limited to its terms. The wife alleged that the agreement had been obtained through sustained bullying, undue pressure and undue influence, and was unfair in any event.

The central issues were whether the agreement should be enforced, whether the wife’s will had been overborne, and, if not, what award was fair under section 25 of the Matrimonial Causes Act 1973.

1. The post-nuptial agreement was not implemented. The court accepted that agreements between spouses do not oust the statutory jurisdiction. They are persuasive and may be upheld where properly and fairly reached, but remain subject to the court’s assessment of justice and fairness.
2. The relevant question was whether the wife’s free will had been overborne by undue pressure or influence. The court adapted the general principles in RBS v Etridge (No 2) [2001] 2 FLR 1364 to the special relationship of husband and wife. Emotional interdependence, dependence, vulnerability and one party’s ascendancy had to be assessed in context.
3. The husband made signature a precondition of reconciliation and repeatedly threatened that the wife could not return home and that the marriage would end unless she signed. The wife was emotionally distressed, financially dependent, inexperienced in financial matters and concerned principally with preserving the family for the children. The pressure was sustained and unacceptable. Her will was overborne, so the agreement was procured by undue pressure or undue influence.
4. Even apart from the manner of execution, the agreement was unfair. Its figures reflected what the husband was willing to provide rather than a properly informed assessment of need, and there was no effective opportunity for negotiation. The agreement was therefore not used as a starting point for the award.
5. The court applied section 25 of the Matrimonial Causes Act 1973, having regard to White v White [2001] 1 AC 596 and Miller and McFarlane 2006 1 FLR 1186. Equality was not appropriate because the assets were inherited, there was no substantial marital acquest and the assets had diminished. Nevertheless, the wife’s needs as the financially dependent parent justified an award from the inherited wealth.
6. The husband’s resources were assessed at approximately £40 million. The court assessed the wife’s capital needs at £9.176 million, comprising a housing fund, capitalised income provision and specified debts. The children’s interim maintenance of £60,000 each per annum plus school fees was retained provisionally, subject to further submissions.
7. The allegations that the wife’s solicitors had devised a strategy to manufacture an exit route were rejected. The solicitors were found to have acted honestly and properly. The court also criticised the parties’ case management and the making of serious professional allegations without sufficiently powerful evidence.