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Decisions to sign prenups must be given ‘heavy respect’

The principle of autonomy is 'extremely relevant', High Court says

4 February 2014

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Where prenuptial agreements are freely signed by "sophisticated, highly intelligent" couples following legal advice, their decisions should be accorded "heavy respect", the High Court has said.

Mr Justice Mostyn was giving judgment on a case involving a "turbulent" relationship between a wealthy man, aged 55, and his 40 year-old wife. Their marriage last only 15 months, and ended in August 2013 with both husband and wife accusing the other of domestic violence.

Shortly before the marriage, the couple signed a prenup, giving the total value of net property assets at over £13m, and providing that the wife would receive an annual payment of £96,000, index-linked from the date of the signing.

In addition, Mostyn J said, the wife would receive an income of £24,000 annually for each child. The couple have an eight year-old boy, and a baby due to be born this month would also be covered by the agreement.

Delivering judgment in BN v MA [2013] EWHC 4250 (Fam), Mostyn J said the wife's witness statement did not "explain at all" how she justified "repudiation of the prenuptial agreement so recently entered into".

Mostyn J said she claimed the "astonishing figure" of £400,000 in costs but, "almost uniquely" in his experience, gave no "detailed particulars".

The judge went on: "The principle of autonomy is, in my view, extremely relevant. In many cases, and this case is an obvious one, the parties entering into the agreement are sophisticated, highly intelligent and have the benefit of the best legal advice that money can buy.

"Where in those circumstances they have thrashed out an agreement, which they have both then freely signed, in my view, heavy respect should be accorded to that decision. The question of autonomy is particularly relevant where the agreement seeks to protect premarital property."

Relying on the Supreme Court ruling in Granatino v Radmacher, Mostyn J said the test which should now be applied in "every case" involving a prenuptial agreement was that courts should give effect to agreements freely entered into with a full appreciation of the implications unless, in the circumstances, it would not be fair.

Mostyn J said that where, as in this case, there was an application for interim maintenance following a prenuptial agreement, courts should "seek to apply the terms of the prenuptial agreement as closely and as practically as it can" unless the wife demonstrated, "to a convincing standard", that she had a likely prospect of satisfying the court that the agreement should not be upheld.

The judge awarded the wife the payments for her and her first child set out in the prenup, along with a further £24,000 a year for the new baby. The husband was awarded 75 per cent of his costs, not to be enforced until conclusion of the proceedings.

The case was heard in camera. No family members were named, nor were their countries of origin.

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