English Courts and Pre-nuptial Agreements : A Predicament of Real Need

3 February, 2014

How courts deal with pre-nuptial agreements is, arguably, the hottest topic in family law at the moment. The judgment of Mr Justice Mostyn in the case of BN v MA recently released contains another helpful rationale as to the approach judges should take when considering how much importance to place on such agreements.

The facts of the case were quite unusual, in that the argument concerned the amount of maintenance the husband should pay to the wife whilst the court proceedings were ongoing, (what lawyers call “maintenance pending suit”) and that was an issue seemingly dealt with specifically in the pre-nuptial agreement. Whilst not a dispute that often comes before the courts, the following comment from the judge is pretty helpful in general –

“In my judgment, when adjudicating a question of interim maintenance, where there has been a prenuptial agreement, the court should seek to apply the terms of the prenuptial agreement as closely and as practically as it can, unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a likely prospect of satisfying the court that this agreement should not be upheld. In the absence of any evidence of that nature from the wife, it is my judgment that it is appropriate for me to seek to apply the agreement to this case as closely as I can, provided that the wife is not left in any real predicament of need.”

That concept of whether one party is left in a “real predicament of need” is one with which Mr Justice Mostyn is well acquainted. As Nicholas Mostyn QC he was lead counsel for the losing side in the Supreme Court appeal of Radmacher v Granatino in 2010 and that phrase was highlighted in the lead judgment as a circumstance that would justify a court declining to uphold a pre-nuptial agreement. In that case the court decided that the husband would not be disadvantaged to that extent by following the terms of the pre-nup.

All this highlights the importance of only signing any nuptial agreement (pre-, post- or separation) if both parties are clear as to its consequence and are willing to be bound by its terms.