Brack v Brack

A purported choice of court agreement concerning maintenance must satisfy Article 4 of the Council Regulation (EC) No 4/2009. It must clearly and unambiguously identify an agreement that the chosen court has jurisdiction over maintenance disputes. A signed written agreement does not establish the necessary consensus where the alleged maintenance prorogation clause is incomplete or unclear.

A freely made prenuptial agreement does not impose a rule that financial relief must be limited to needs. The court must consider all the statutory factors and decide what fairness requires. An agreement excluding sharing will ordinarily carry substantial weight, so a needs-based award may be likely. Exceptionally, however, fairness may justify provision exceeding assessed needs.

The wife appealed from a financial remedies order following the breakdown of a long marriage between Swedish nationals. The parties had entered three prenuptial agreements before their marriage. The High Court found that the agreements were freely made but unfair because they did not meet the wife’s or the children’s needs.

The judge held that the agreements contained a valid maintenance prorogation clause in favour of Sweden. He therefore considered that he could not make a needs-based award under the Matrimonial Causes Act 1973. He also considered that the prenuptial agreements confined the wife’s substantive claim to needs. The appeal challenged both conclusions. The order appealed from was [2016] EWHC 3431 (Fam).

1. Appeal allowed and remitted. Lady Justice King, with whom Lewison and Peter Jackson LJJ agreed, held that none of the agreements contained a valid maintenance prorogation clause. The Ohio agreement was signed and satisfied the formal requirement of writing. However, its jurisdiction clause did not clearly identify maintenance as a matter assigned to the Swedish courts. Article 4 required a clear agreement on that subject. The later Gothenburg agreement, which was incorporated and given precedence, also dealt only with property and contained no maintenance prorogation clause.

2. The High Court had therefore erred in treating the English court’s jurisdiction to award for the wife’s needs as excluded. The court accepted that an effective maintenance prorogation clause would exclude jurisdiction over maintenance, while leaving domestic jurisdiction over rights in property arising from a matrimonial relationship. That issue did not arise because no valid clause had been agreed.

3. The High Court had also erred in treating the prenuptial agreements as inevitably extinguishing any sharing claim. Under [2010] UKSC 42, a freely made nuptial agreement is an important factor in determining fairness, but it does not displace the court’s obligation to consider all relevant matters under section 25 of the Matrimonial Causes Act 1973.

4. Where an effective agreement excludes sharing, fairness will ordinarily lead to provision limited to the spouse’s needs, assessed with an appropriate degree of generosity. That is not an inflexible rule. In an unusual case, consideration of all the circumstances, including the welfare of children, may fairly justify provision exceeding needs despite the agreement.

5. The matter was remitted to the judge to exercise the broad statutory discretion afresh, without a supposed maintenance prorogation clause and without treating a needs-based outcome as legally compulsory.

• Court of Appeal (Civil Division): Allowed the wife’s appeal, set aside the conclusions that there was a valid maintenance prorogation clause and that relief was necessarily limited to needs, and remitted the financial remedy claim.
• High Court of Justice, Family Division: Held that the prenuptial agreements were freely made but unfair, found a valid maintenance prorogation clause, and made limited financial and child-related provision: [2016] EWHC 3431 (Fam).