The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, restricting his ancillary relief.
Held: H’s appeal failed (Lady Hale dissenting). Separation agreements had come to be accepted since 1957. Post-nuptial agreements had now been accepted, and there remained no reason of principle to maintain the distinction with pre-nuptial or ante-nuptial agreements.
The court approved Macleod in that the old rule that agreements providing for future separation are contrary to public policy is obsolete and should be swept away. This was not however to be restricted to post-nuptial agreements, and ‘the Board in MacLeod was wrong to hold that post-nuptial agreements were contracts but that ante-nuptial agreements were not.’ The court advanced the following proposition, to be applied in the case of both ante- and post-nuptial agreements: ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.’
Lady Hale (disssenting) felt that there remained good reason to take different approaches to agreements made before and after a marriage. The court’s duty was to look to the situation which applied at the tme it came to make its order. It would be for parliament to make proper reforms in this area.
Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Collins, Lord Kerr
[2010] UKSC 42, [2010] 2 FLR 1900, [2010] 3 FCR 583, [2010] Fam Law 1263, [2011] 1 All ER 373, [2010] 3 WLR 1367, [2011] 1 AC 534
Bailii, SC, SC Summary, Bailii Summary
Matrimonial Causes Act 1973 23 24 25, Matrimonial and Family Proceedings Act 1984, Family Law Act 1996
England and Wales
Citing:
At First instance – NG v KR (Pre-nuptial contract) FD 28-Jul-2008
The parties were foreign nationals, but married and lived in England after the wedding. They had signed a pre-nuptial agreement which would be valid in either country of origin, but the husband now sought ancillary relief putting the aside.
Appeal from – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Approved – Macleod v Macleod PC 17-Dec-2008
(Isle of Man) The parties had signed a post-nuptial agreement.
Held: It was not open to the courts to find that such agreements might be enforced. They had been unenforceable under common law, and if the law was to be changed it must be by . .
Cited – Cocksedge v Cocksedge 25-Jul-1844
A covenant before marriage that, in case of any separation taking place between the husband and wife, the husband shall make a certain provision for his wife, is void. . .
Cited – H v W 4-May-1857
Any agreement made before or after marriage, which contemplates a voluntary separation of husband and wife, is void as contrary to the policy of the law. By an ante-nuptial settlement property of the husband was limited during the joint lives of . .
Cited – Hyman v Hyman 1929
The husband had left the wife for another woman. Adultery by the husband was not a ground for divorce absent aggravating circumstances, such as incest. The parties had entered into a deed of separation under which the husband had paid two lump sums . .
Cited – Charman v Charman (No 4) CA 24-May-2007
The court considered what property should be considered in an ancillary relief claim on divorce, and said: ‘To what property does the sharing principle apply? The answer might well have been that it applies only to matrimonial property, namely the . .
Cited – Bennett v Bennett CA 1952
The wife sued for arrears of maintenance payments payable under a deed in consideration for which the wife covenanted not to proceed with the prayers in the petition for maintenance, to consent to their being dismissed, and not to present any . .
Cited – Edgar v Edgar CA 23-Jul-1980
H and W separated and in 1976, without any pressure H and at the instigation of W, signed a deed of separation negotiated through solicitors. H agreed to purchase a house for W, to confer on her capital benefits worth approximately andpound;100,000, . .
Cited – Camm v Camm CA 1982
Ancillary relief was claimed in the face of the terms of a separation agreement.
Held: If asked to look at an ancillary relief settlement agreed between the parties, the court could do so where the original provision was inadequate. Here, the . .
Cited – Smith v McInerney FD 1994
H had entered into a separation agreement with his wife, but now sought a lump sum and property adjustment order when his circumstances changed as a result of being made redundant.
Held: Thorpe J cited Edgar v Edgar and Camm v Camm and said: . .
Cited – N v N (Jurisdiction: Pre-Nuptial Agreement) FD 12-Jul-1999
A pre-nuptial agreement to abide by the decisions of the Beth Din Rabbinical Court could not be enforced so as to prevent a civil divorce proceeding through to its termination, but where the agreement required the husband first to obtain a Get, and . .
Cited – Miller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
Cited – F v F (Ancillary Relief: Substantial Assets) FD 1995
The wife of a rich man wanted pounds 2.5M to purchase a home for herself and the children pending the determination of her claims for ancillary relief. There was no fund to draw on but the husband had ample means. She sought lump sum provision in . .
Cited – S v S (Matrimonial Proceedings: Appropriate Forum) (Divorce: Staying Proceedings) FD 27-Mar-1997
Fairness is the test for choice of forum for staying divorce proceedings. As to prenuptial agreements, Wilson J suggested that there might come a case: ‘where the circumstances surrounding the prenuptial agreement and the provision therein contained . .
Cited – Crossley v Crossley CA 19-Dec-2007
The parties had entered into a pre-nuptial agreement. On the ancillary relief proceedings on divorce, the husband sought to have the agreement taken into account by the court. It decided that the wife should give reasons why she considered that the . .
Cited – NA v MA FD 24-Nov-2006
The very wealthy H found that W had committed adultery with one of his friends. H pressured W to sign an agreement providing that she would receive a specified lump sum and annual payments if their marriage ended in divorce. W signed it because H . .
Cited – J v V (Disclosure: Offshore Corporations) FD 2003
A prenuptial agreement had been signed on the eve of marriage without advice or disclosure and without allowance for arrival of children. Coleridge J also considered the use of documents recovered by a party by unauthorised or improper means. He . .
Cited – G v G (Financial Provision: Separation Agreement) CA 28-Jun-2000
The parties had been married before and had signed a prenuptial agreement.
Held: Thorpe LJ set out the duties of a judge in ancillary relief applications: ‘A judge has to do fairness between the parties, having regard to all the circumstances. . .
Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Cited – K v K (Ancillary Relief: Prenuptial Agreement) FD 2003
The court set out out a serious of questions to be considered in determining whether or not to uphold the terms of a prenuptial agreement: ‘I distill from the authorities the following questions, which I ask myself in determining the issue whether . .
Cited – X v X (Y and Z intervening) FD 9-Nov-2001
The court considered an agreement under which the quid pro quo for the payment of a sum of money was a husband’s agreement not to defend his wife’s petition for divorce grounded on his behaviour (even though he believed that he had grounds for . .
Cited – C v C (Divorce: Stay of English Proceedings) FD 2001
The existence of a French ante-nuptial agreement was a significant factor in the staying of the English proceedings for divorce. . .
Cited – Van den Boogaard v Laumen ECJ 27-Feb-1997
ECJ If the reasoning of a decision rendered in divorce proceedings shows that the provision which it awards is designed to enable one spouse to provide for himself or herself, or if the needs and resources of . .
Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Cited – Charalambous v Charalambous; C v C (Ancillary Relief: Nuptial Settlement) CA 30-Jul-2004
The parties had been wealthy. Whilst still married, substantial sums had been placed in a trust. Their business interests had crashed and both faced personal bankruptcy. The husband appealed an order setting aside the trust.
Held: A clause in . .
Cited by:
Cited – Traversa v Freddi CA 14-Feb-2011
Jurisdiction in Cross border divorce
The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for . .
Cited – Abdul and Others v Director of Public Prosecutions Admn 16-Feb-2011
The defendants appealed against convictions for using threatening, abusive or insulting words or behaviour or disorderly behaviour . . within the hearing or sight of a person likely to be caused harassment, alarm or distress. He had attended a . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Lists of cited by and citing cases may be incomplete.
Family
Updated: 01 November 2021; Ref: scu.425353
