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 might, when viewed in the context of the other circumstances of the case, prove influential or even crucial. Where other jurisdictions, both in the United States and in the European Community, have been persuaded that there are cases where justice can only be served by confining parties to their rights under prenuptial agreements, we should be cautious about too categorically asserting the contrary. I can find nothing in section 25 to compel a conclusion, so much at odds with personal freedoms to make arrangements for ourselves, that escape from solemn bargains, carefully struck by informed adults, is readily available here.’
Wilson J said: ‘I am aware of a growing belief that, in the despatch of a claim for ancillary relief in this jurisdiction, no significant weight will be afforded to a prenuptial agreement, whatever the circumstances. I would like to sound a cautionary note in that respect. No one could have more profound respect than I for the observations of Thorpe L.J. In F. v. F. (Ancillary Relief: Substantial Assets) [1995] 2 FLR 45, 66 he said:
‘In this jurisdiction [prenuptial agreements] must be of very limited significance. The rights and responsibilities of those whose financial affairs are regulated by statute cannot be much influenced by contractual terms which were devised for the control and limitation of standards that are intended to be of universal application throughout our society.’
There is a danger that these wide words might be taken out of context. There is no doubt that, where the English court proceeds to determine an application for ancillary relief, section 25 of the Matrimonial Causes Act 1973 precludes any choice of foreign law, however vividly the circumstances of the case might protest its relevance. So the application is of English law and under section 25(1) regard must be had to all the circumstances of the case. In F. v. F. itself, the result of a strict application of the effect of the prenuptial agreements would have been, as the judge said, ‘ridiculous.’ In those circumstances they inevitably constituted circumstances of negligible significance. But there will come a case-were I to refuse a stay, might this be it?-where the circumstances surrounding the prenuptial agreement and the provision therein contained might, when viewed in the context of the other circumstances of the case, prove influential or even crucial. Where other jurisdictions, both in the United States and in the European Community, have been persuaded that there are cases where justice can only be served by confining parties to their rights under prenuptial agreements, we should be cautious about too categorically asserting the contrary. I can find nothing in section 25 to compel a conclusion, so much at odds with personal freedoms to make arrangements for ourselves, that escape from solemn bargains, carefully struck by informed adults, is readily available here. It all depends. The matter must be left open and on the footing that, were she to be enabled to claim ancillary relief in England, the wife might secure an award of substantial further provision. In what follows my duty is to appraise the relevance of the prenuptial agreement to the determination not of the wife’s potential application for ancillary relief but of the entirely different issue as to forum.’
Wilson J
Times 16-Apr-1997, Times 27-Mar-1997, [1997] 1 WLR 1200
Domicile and Matrimonial Proceedings Act 1973
England and Wales
Cited by:
Cited – 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 . .
Cited – 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.
Family
Updated: 01 November 2021; Ref: scu.88958