MN v AN

A pre-nuptial agreement should generally be given significant weight where it was freely entered into, with full disclosure and independent legal advice, unless a fundamental vitiating factor or subsequent unfairness makes it unjust to hold the parties to it.

The court should consider separately the circumstances surrounding the agreement and whether its operation remains fair under the statutory factors. Pressure arising from a condition that there will be no marriage without an agreement is not, by itself, undue pressure. Children’s welfare is the first consideration in financial remedy proceedings, but it is not paramount and does not give them a veto over the sale of a former matrimonial home.

The parties married in 2005 and had two children. Before the marriage, they negotiated and executed a pre-nuptial agreement after receiving independent legal advice and making financial disclosure. The agreement provided for substantial housing and income provision for the Wife, child maintenance and a 25-year sunset clause.

Following the breakdown of the marriage, the Wife sought financial remedies outside the agreement. She alleged that the agreement had been procured by undue pressure and that it did not meet her needs, particularly because it did not permit her to retain the London home. The Husband sought to enforce the agreement. The central questions were whether the agreement should be given full weight and whether its application remained fair under the Matrimonial Causes Act 1973.

1. The pre-nuptial agreement. The court applied the two-stage approach identified in Brack v Brack. First, it considered whether the agreement should be ignored or given reduced weight because of the circumstances in which it was made. Secondly, it considered whether the provision remained fair at the time of the hearing.
2. There was full disclosure, proper independent legal advice and a substantial period between the disputed argument and execution. The Wife was under pressure, but the pressure was not undue. A statement that the parties would not marry without an acceptable pre-nuptial agreement was commonplace and did not, without more, vitiate the agreement. The parties’ argument was two-way, followed by a cooling-off period and negotiations in which both made concessions. The agreement was therefore not vitiated and was entitled to full weight.
3. The fact that the agreement pre-dated Radmacher v Granatino did not justify disregarding it. The relevant question was whether it was fair to hold the parties to the agreement in the circumstances prevailing at the hearing.
4. Fairness and needs. The agreement provided approximately £11.75 million, comprising housing provision and a Duxbury fund, together with substantial child maintenance and education-related payments. That provision was within the bracket of reasonable awards and was not unfair. The Wife’s exceptionally high marital standard of living did not require provision at the level claimed.
5. The children’s welfare was the first consideration under section 25, but was not paramount. Their attachment to the London property did not justify requiring its retention. Children adapt to moving home and do not have a veto over the sale of a former matrimonial home.
6. The Husband was ordered to discharge the Wife’s litigation loan in addition to the provision under the agreement. The London property was to be sold, with the Wife receiving a fixed housing payment of £4.75 million. The Wife was to transfer the jointly owned properties and the joint Credit Suisse account to the Husband, subject to a tax indemnity. The interim arrangements continued until payment, after which there would be a clean break. Costs were left open.