DB v PB

A valid choice-of-court agreement under Article 4 of the Maintenance Regulation may exclude English jurisdiction over maintenance claims, but it does not necessarily exclude claims concerning rights in property arising from the matrimonial relationship. A sharing claim may constitute such a property right. Where a nuptial agreement is validly made but produces unfairness, the court should not simply disregard it. It should intervene to alleviate the unfairness, ordinarily by meeting the claimant’s needs from assets otherwise treated as separate property. The court cannot make a needs-based award where jurisdiction over maintenance has been validly prorogued to a foreign court.

The parties, Swedish nationals, had married after signing Swedish and American prenuptial and prorogation agreements. Following the breakdown of their marriage, the wife sought ancillary financial relief and provision under Schedule 1 of the Children Act 1989. The husband relied on the agreements and contended that the English court lacked jurisdiction over the wife’s claims. The principal issues were whether the prorogation clause was valid, whether it excluded sharing claims as well as maintenance claims, what effect should be given to the unfair prenuptial agreement, and what provision could be made for the wife and children.

1. Jurisdiction. The parties had agreed in writing to Swedish jurisdiction, satisfying Article 4(1) and (2) of the Maintenance Regulation. The prorogation clause was valid and excluded the English court’s jurisdiction over the wife’s maintenance claims.
2. The clause did not exclude claims concerning rights in property arising from the matrimonial relationship. Applying Van den Boogaard v Laumen [1997] ECR I-1147, the wife’s sharing claim was a claim to a fair share of matrimonial assets and was not, in that respect, maintenance. The court could therefore determine the parties’ strict property rights, including equal ownership of the net proceeds of sale of the family home.
3. Prenuptial agreement. The agreements had been freely entered into and were not vitiated by fraud, misrepresentation, duress or undue influence. Nevertheless, applying the approach in Radmacher v Granatino [2011] AC 534, it would be unfair to hold the wife to terms leaving her with almost nothing after a long marriage involving equal contributions and children.
4. An unfair but valid agreement should not automatically be discarded. The court should respect the parties’ autonomy while intervening to alleviate the unfairness. In the present case, that required meeting the wife’s needs by invading the husband’s separate property, but the resulting needs-based claim was maintenance and could not presently be determined in England.
5. The court therefore stayed the wife’s lump sum and maintenance claims pending determination or rejection by the City Court of Stockholm. It ordered sale of the family home, with the net proceeds divided equally, and ordered the husband to provide £2 million for a Schedule 1 property for the children and their mother as carer, together with £95,000 annually for the wife and children and payment of the elder child’s school fees.