Is the tide turning on nuptial agreements?

The High Court case of MN v AN [2023] EWHC 613 (Fam) is the latest decision confirming the strength of nuptial agreements in England and Wales, particularly where parties have received specialist legal advice at the time the prenuptial agreement (PNA) was drafted.

The court was concerned with a financial remedies application involving a prenuptial agreement entered into in 2005, before Radmacher. At the time of entering into the agreement, the husband's assets were £32.5m and the wife's £62,000. The parties were advised by top-tier specialist family solicitors, and following negotiations, an agreement was drawn.

The agreement provided that the husband would pay the wife £500,000 for each year of marriage, capped at £12.5m and after 8 years or the birth of children, she would also receive half the value of their London property. Alternatively, she would receive a 50 per cent increase in the value of the husband's assets during the marriage, if greater, but capped at 42 per cent of the husband's wealth. Under the agreement, the husband would also pay child maintenance, school fees, and medical expenses. The agreement would cease to have effect after 25 years.

Upon giving the wife notice of his intention to divorce, the husband sought to rely on the terms of the PNA, which would have given the wife £7m for each completed year of marriage, plus £4.75m for housing. The wife sought a division far greater than what she would have been entitled to under the PNA. The husband, therefore, applied for the wife to show cause why she should not be held to the terms of the PNA. The wife's case was that the husband had behaved in a coercive and controlling manner towards her, a similar point raised by the wife in Traharne v Limb [2022] EWFC 27. The wife argued that the husband insisted upon the PNA and made it clear that there would be no wedding unless she signed the agreement. She also argued that the PNA was not fair, did not meet her reasonable needs, and was signed before the Supreme Court decision in Radmacher.

‘Coercive control’

Moor J determined that there was no evidence to support the wife's claim of coercive control. Although the wife did not argue on the basis of conduct, she attempted to include conduct as a factor to be considered within 'all the circumstances' under Section 25 of the Matrimonial Causes Act 1973. However, this was not allowed, and it is important for practitioners to keep this in mind when opposing an application to challenge the terms of a prenuptial agreement (PNA). The wife was found to be under pressure but not unduly pressured, which would have invalidated the agreement. Following the principles established in Radmacher and subsequent cases, Moor J concluded that the PNA fell within the range of reasonable arrangements. Under the agreement, the wife would have received half of the marital assets' increase in value if it exceeded other provisions, so the principle of sharing was not disregarded.

The fact that the marriage would not have taken place without the PNA alone did not constitute a vitiating factor. A similar conclusion was reached in KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam), where it was important to the husband for the wife to enter into an agreement safeguarding his pre-marital wealth, while still fulfilling his obligations to meet her financial needs in the event of divorce. In that case, Mostyn J did not consider the absence of a marriage without a signed prenuptial agreement as duress or exploitation of a dominant position. This is indeed the case, as parties often enter into nuptial agreements to protect substantial pre-marital assets. For instance, in WC v HC [2022] EWFC 22, the husband had inherited wealth of £12.47m from his family or owned by him prior to the marriage, and an agreement was made to protect these assets.