AD v BD

In financial remedy proceedings, a pre-nuptial agreement is not given weight merely because it is clear or customary in the jurisdiction where it was signed. The court must assess whether the party seeking to rely on it understood its implications, had the material information needed for the decision, and intended the agreement to govern the financial consequences of divorce. The absence of legal advice or disclosure is not automatically decisive. However, lack of understanding and a serious absence of opportunity to consider the agreement may be decisive. A matrimonial home acquired by gift may be treated as partly matrimonial property where the marriage is substantial and the home is to remain the family home for many years. Non-matrimonial wealth remains relevant, but normally is not shared unless needs require. A clean break and the ending of spousal maintenance may be ordered where future resources, earning capacity and realisable capital can reasonably meet the claimant’s needs.

The wife applied for financial remedy orders after an eight-year marriage, following which the parties had two children. The husband relied on a separation-of-property agreement signed in France shortly before the religious and civil marriage. The wife accepted that the document identified the regime but said that she did not understand its implications and had no meaningful opportunity to consider it.

The parties also disputed the treatment of the matrimonial home, a substantial payment made to the husband during the marriage, their respective resources, earning capacities and the appropriate periodical payments. The court had to determine the weight of the agreement, the shareable matrimonial assets, and the provision required for the wife and children.

1. Pre-nuptial agreement. The court applied the principles in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 and the guidance in Versteegh v Versteegh [2018] EWCA Civ 1050. Legal advice and disclosure are desirable but their absence is not automatically fatal. The decisive question was whether the wife had the information and understanding necessary to make an informed decision and intended the agreement to govern the financial consequences of the marriage ending.
2. The agreement had not previously been discussed. It was presented the day before the wedding, during an acute family crisis, without a realistic opportunity for the wife to consider it, consult her family or understand the effect of choosing a separation-of-property regime. The agreement was therefore given no weight.
3. Matrimonial home. Applying Miller, McFarlane [2006] UKHL 24 and K v L [2011] EWCA Civ 550, the court treated source, duration of the marriage, the acquisition of matrimonial property and the home’s central role as relevant. The home was neither wholly shareable nor wholly excluded. Forty per cent was treated as matrimonial property, but the home was transferred absolutely to the wife because it was to remain the home of her and the children for many years and the husband could rehouse himself without a charge.
4. The $8m payment received by the husband was treated as matrimonial acquest. The court assessed the shareable acquest at approximately £7.9m and made further provision by periodical payments. The wife’s inherited and gifted assets were non-matrimonial and largely unavailable in the short term, but their potential future realisation was relevant to the termination of spousal maintenance.
5. Disclosure of unlawfully obtained documents. The court rejected the submission that disclosure could be postponed until service of a questionnaire. Following Imerman v Tchenguiz [2010] 2 FLR 814 and agreeing with UL v BK [2013] EWHC 1735 (Fam), documents obtained wrongfully had to be disclosed and returned promptly. The wife’s use of the documents contributed to disproportionate and costly proceedings.
6. Spousal maintenance was fixed at £70,000 per annum until December 2022, reducing by £16,000 per annum until October 2026, after which it would end. Child periodical payments were set at £40,000 per child per annum, together with specified education and medical expenses.

First-instance financial remedy determination in the High Court (Family Division). No appellate history was stated in the judgment.