Crossley v Crossley

A prenuptial agreement cannot oust the court’s duty to determine financial provision under section 25 of the Matrimonial Causes Act 1973. It may nevertheless have magnetic importance where mature, independently wealthy parties entered it with legal assistance, the marriage was short and childless, and no significant marital wealth was created.

The court may use proportionate case management to determine at an early stage whether a party should show cause why such an agreement should not govern the outcome. The prescribed procedural rules are not a straitjacket. The overriding objective permits proportionate limits on disclosure, provided that further investigation remains available if necessary for the statutory exercise.

The wife appealed against Bennett J’s case-management directions in ancillary relief proceedings following a short, childless marriage. Both parties possessed substantial independent wealth and had signed a professionally negotiated prenuptial agreement providing broadly that each would retain separate property and neither would seek financial provision based on the marriage.

The husband applied for the wife to show cause why her claims should not be resolved in accordance with the agreement. Bennett J directed the exchange of Forms E without supporting documents or questionnaires and arranged a High Court hearing. The wife could state her allegations of the husband’s non-disclosure by letter, to be answered in his Form E.

The central issues were whether this procedure impermissibly treated the agreement as a preliminary issue, displaced the section 25 exercise, or contravened the mandatory requirements of the Family Proceedings Rules.

1. Permission to appeal was granted, but the appeal was dismissed. Thorpe LJ held that Bennett J had adopted an admirable and sensible form of case management. Keene and Wall LJJ agreed, although Wall LJ confined his agreement strictly to the exceptional facts.

2. A prenuptial agreement cannot oust the court’s obligation to apply section 25 of the Matrimonial Causes Act 1973 by reference to all the statutory criteria. The directions did not purport to do so. The agreement remained one aspect of the statutory exercise.

3. On these exceptional facts, the agreement could be a factor of magnetic importance rather than a peripheral consideration. The parties were mature, independently wealthy adults who had previously been married. Their marriage was short and childless, they had lived apart for a substantial part of it, and there was no joint property. Those circumstances created a strong possibility that the section 25 exercise would produce no further award to the wife.

4. The procedural requirements in the Family Proceedings Rules were not a straitjacket preventing sensible case management. Rule 2.51D required attention to saving expense, proportionality, the proper allocation of court resources, early identification of issues, and proportionate control of disclosure and expert evidence. A judge could therefore require a party to show cause why a prenuptial or postnuptial agreement made before marital breakdown should not determine an ancillary relief claim.

5. The wife had not been prevented from pursuing material non-disclosure. Bennett J substituted a prompt and focused letter, to be answered in the husband’s Form E, for an immediate questionnaire. Keene LJ emphasised that the wife could still persuade the hearing judge that further information, full investigation or a full hearing was required before the section 25 exercise could be completed.

1. Court of Appeal (Civil Division): Permission to appeal was granted because the case raised an issue of general importance. The appeal against Bennett J’s case-management directions was dismissed: [2007] EWCA Civ 1491.
2. High Court, Principal Registry of the Family Division: Bennett J directed focused Forms E without documents or questionnaires, permitted the wife to particularise alleged non-disclosure by letter, and arranged a High Court hearing of the husband’s show-cause application.