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 husband. The husband had not had independent legal advice before signing the agreement.
Held: Judges were given a wide discretion in ancillary relief proceedings as to the best way of achieving a fair result. ‘Section 25 allows the judges to factor into the discretionary balance considerations that would have been unthinkable in January 1971, the commencement date of this statutory power in its original form. We can take advantage of the flexibility that Section 25 provides to alleviate injustice that would otherwise result from the jurisdictional rules introduced by Brussels II and the widely divergent legal and social traditions of the civil and common law states of Europe.’
Here, the court could do that by allowing for the prenuptial agreement. Though the husband had not received independent legal advice, he acted in a jurisdiction where such agreements are commonplace, had substantial business expertise, and had had full opportunity to take advice. The balance between the needs to provide for the children and the need to allow for the agreement lay in putting the house to be purchased in trust to revert to the wife on the youngest child attaining 22.
Wilson LJ reminded the court that section 25 required the court to have regard to all the circumstances of the case, and then provided a list of matters to which it had to have particular regard. That list was therefore not exclusive.
Lord Justice Thorpe, Lord Justice Rix and Lord Justice Wilson
 EWCA Civ 649, Times 13-Jul-2009,  2 FCR 645,  2 FLR 1181,  Fam Law 789
Matrimonial Causes Act 1973 25
England and Wales
Application for leave – Radmacher v Granatino CA 3-Oct-2008
The parties, both foreign nationals, had signed a prenuptial contract in Germany before their marriage in England. It had provided that on a divorce neither could claim against the other. The wife had very substantial assets, the husband had few. . .
Cited – de Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .
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 . .
Not Followed – 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 – 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 – 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 – 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 – Pounds v Pounds CA 24-Feb-1994
Consent orders giving effect to financial settlements are to be drafted and dated with care. The one in this case mistakenly pre-dated the decree nisi. It was amended under the slip rule. . .
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 – Otobo v Otobo; O v O (Appeal against Stay: Divorce Petition) CA 2-Jul-2002
The husband, a wealthy Nigerian had supported further traditional families outside the UK. The wife appealed a stay on her divorce petition. The husband argued that her habitual residence did not support jurisdiction. Agreed expert evidence . .
Cited – Morgan v Hill CA 28-Nov-2006
The father appealed an award of periodical payments to a former partner. She had a child by an earlier relationship. The father was immensely rich and during the relationship made financial provision for the child by the earlier relationship also. . .
Cited – P (Child), Re (Child: Financial Provision) CA 24-Jun-2003
The father was a very wealthy Iranian, and the mother also had capital. She sought an assessment under the 1991 Act of the amount he should be asked to pay. The assessment came to andpound;152 per week, but he was paying andpound;1,200 a month . .
Cited – C v C (Ancillary Relief: Nuptial Settlement) FD 2-Apr-2004
Application for ancillary relief to vary post-nuptial settlement. . .
Cited – Thyssen-Bornemisza v Thyssen-Bornemisza (No 2) 1985
Cited – Dart v Dart CA 2-Jul-1996
A strictly mathematical approach to calculating ancillary relief can be inappropriate in large sum cases. The statutory jurisdiction has to provide for all applications for ancillary financial relief, from the poverty stricken to the . .
Appeal from – 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 (Formerly Granatino) v Granatino SC 20-Oct-2010
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, . .
Lists of cited by and citing cases may be incomplete.
Updated: 01 November 2021; Ref: scu.347310