BN v MA

A nuptial agreement should be upheld where it was freely entered into with a full appreciation of its implications, unless it would be unfair to hold the parties to it. In an interim maintenance application, the court should apply the agreement as closely and practically as possible where the applicant cannot show a convincing prospect that it will not ultimately be upheld. The court must ensure that the agreement does not prejudice a child’s reasonable requirements or leave a party in real need. A costs allowance is unavailable where the applicant can reasonably obtain litigation funding by loan. The subject matter, merits and adequacy of the costs evidence remain relevant.

The wife applied for maintenance pending suit under section 22 of the Matrimonial Causes Act 1973, interim periodical payments for the parties’ child, and a costs allowance under section 22ZA. The applications arose shortly after the parties’ marriage ended and concerned a premarital agreement signed approximately 15 months earlier. The agreement provided for specified capital and periodical payments on separation and was supported by independent legal advice.

The wife sought to challenge the agreement, alleging material non-disclosure and unfair circumstances surrounding its execution. The central issues were whether the agreement should govern interim maintenance and whether the wife satisfied the statutory conditions for a costs allowance.

1. The application was determined by applying the principles in Granatino v Radmacher [2011] 1 AC 534. The governing test is whether the agreement was freely entered into with a full appreciation of its implications, unless, in the circumstances prevailing, it would be unfair to hold the parties to it.

2. Relevant considerations included the protection of a child’s reasonable requirements, respect for the parties’ autonomy, whether the agreement left a party in real need, and whether there had been sufficient disclosure and legal advice to permit an informed decision. Full disclosure and full legal advice were not invariably required. The question was whether any deficiency was material.

3. For interim maintenance, the court should apply the premarital agreement as closely and practically as possible unless the applicant’s evidence demonstrated, to a convincing standard, a likely prospect that the agreement would not be upheld. The wife had not provided evidence establishing such a prospect. The agreed provision was therefore used as the starting point, subject to credits for the housing and other benefits provided by the husband. The award was increased to reflect the birth of the parties’ second child, but the wife was not left in a real predicament of need.

4. The costs allowance application was dismissed. Under sections 22ZA(3) and 22ZA(4)(a) and (b) of the Matrimonial Causes Act 1973, the wife could reasonably obtain litigation loans, even though they carried substantial interest. Section 22ZB required consideration of the subject matter of the proceedings. The wife’s claim was speculative, her prospects were questionable, and her evidence contained no sufficiently detailed schedule of costs. Those matters independently justified refusing an allowance.

5. The husband was awarded 75 per cent of his costs, assessed on the standard basis if not agreed, with enforcement postponed until the conclusion of the proceedings. He was entitled to his costs of the dismissed costs-allowance application.