Latest case law on Pre-nuptial Agreement; Court enforces pre-nuptial agreement in interim maintenance application BN v. MA [2013]

Background

The court considered the effect of a prenuptial agreement on a wife’s applications for interim maintenance, interim periodical payments for a child, and legal services provision

The husband was 55 years and the wife 40. They met in 2001, started a relationship in 2002 and had one child in 2005. They got engaged in 2009 and married in 2012. In March 2013 the wife became pregnant with their second child (born February 2014) but the marriage broke down shortly after, in August 2013. After the engagement, the husband’s solicitors prepared a draft prenuptial agreement which was negotiated for some time and the parties eventually signed what is described as a “pre-marital agreement” on 30th May 2012. The wife petitioned for divorce in September 2013 and issued a financial application.

Judgment

The judgment relates to the wife’s applications, made in November 2013, for:

• maintenance pending suit (interim maintenance pending the conclusion of the proceedings)
• interim periodical payments for the parties’ child (aged 8 yrs)
• a legal services order to assist her with the payment of her legal costs.

Of crucial importance was the court’s detailed consideration of an English prenuptial agreement which the parties had entered into before their marriage, in May 2012 and how this impacted on the court’s assessment of these interim applications.

The Court reviewed the law on prenuptial agreements and found that:-

“….when adjudicating the 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 practically as it can, unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a prospect of satisfying a court that the agreement should not be upheld.”

In applying that principle, the court decided the following:

• Maintenance pending suit for the wife would be as provided in the prenuptial agreement (£96,000 pa, index-linked from the date of the agreement).
• Child maintenance as per the agreement at £24,000 pa per child.
• Against the above sums, the court gave credit to the husband in relation to certain assets.

The court decided that the wife had no entitlement to a costs allowance and a costs order was made against the wife for 75% of the husband’s costs as the Husband had been successful in the application for maintenance pending suit.

Will pre pre-nuptial agreements be enshrined in law in the future?

The Law Commission published its Matrimonial Property, Needs and Agreements final report on the 27^th February 2014 where a number of recommendations were made which included introducing “qualifying nuptial agreements”. The Law Commission sated that these would be enforceable contracts, which would enable couples to make binding arrangements for the financial consequences of divorce or dissolution.  In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met.  Qualifying agreements could not, however, be used by parties to contract out of meeting the “financial needs” of each other and of any children. The Report included a draft Nuptial Agreements Bill, which would introduce qualifying nuptial agreements in England and Wales.

However, so far, the law on pre-nuptial agreements has not been changed. It is still down to the courts (in financial proceedings) to decide on a case by case basis how much weight to give to an agreement made between the parties – the law does not allow couples to prevent each other from asking the courts to decide how their property should be divided.

If you would like further advice in connection with the matters raised in this article then please contact one of our family solicitors, Miss Vincent on 01926 422 101.