The husband (H) is French. The wife (W) is French/Lebanese/British. The parties met and commenced a relationship in 1986 and married in 1994. In contemplation of their marriage, they signed a Marriage Contract in June 1994. It was a standard, straightforward agreement on a separation of property basis. Although the circumstances of signing the marriage contract were disputed, the Notaries instructed had connections to W's family. Shortly after the marriage, the parties moved to England.
The parties had three children. At the time of the hearing, the youngest was 17 and the other two were adults. W issued a divorce petition in May 2020. The total assets were considered to be between £22 and £28 million, with the husband holding the larger proportion.
H claimed it was W's family who arranged the marriage contract and that the parties had conducted their lives in accordance with the marriage contract by keeping their financial lives separate. He stated that both parties signed the contract with full knowledge of its ramifications and that both parties had a mutual desire to retain their financial independence. Cascading family wealth to future generations was very important to both of them. The notary had advised the parties about the legal implications. H had already inherited from his family but W's inheritance was yet to come. W would never have signed without understanding the implications, as she is an intelligent and sophisticated business woman. W claimed that she had wanted to reassure H that she was not interested in his family assets, but the parties had pooled their financial resources. She claimed she had had no legal advice and there was no disclosure of resources. She had understood that the contract only excluded inherited resources.
Decision
The court upheld the marriage contract. Moor J did not consider the lack of independent legal advice or full disclosure to be fatal. The parties were given advice by the Notary and he found that they had a full appreciation of the contract's implications. Such contracts are very common in France and the parties had used the firm of Notaries used by W's family. At the time, W had been earning more than H and she wanted to retain the rewards of her career. The marriage contract met the Radmacher test. However, the contract would have failed if it had attempted to exclude a needs based award as it would not have been fair. He assessed W's reasonable needs and made a needs based award equal to 38.9% of the total matrimonial assets.
Moor J also made some comments regarding pensions. The parties had commissioned a pension report, with calculations being carried out on the basis of achieving equality of income, but given the assets were between £22M and £28M he considered the instruction of a pension expert to have been unnecessary. He agreed with Francis J in SJ v RA [2014] EWHC 4054 (Fam) that any division of pension should be based on equality of CE value, rather than equality of income and that any other approach would be discriminatory in favour of age or gender (women usually having longer life expectancies). Moor J's attention does not appear to have been drawn to the Pension Advisory Group's report on pensions on divorce which endorsed pension sharing on the basis of achieving equality of income.
Barbara Reeves says: This case follows a chain of decisions which flow from the leading case of Radmacher v Granatino [2010] UKSC42 which confirmed that obtaining independent legal advice is not essential if pre-nuptial agreements are to carry weight in a divorce settlement provided each party understands the implications of the agreement. Yet as with Radmacher, a case which redefined how we implement pre-nuptial agreements, this case also serves as a "health warning" that if you do wish to safeguard your financial interests on divorce, then seeking independent legal advice is essential, if you wish to fully understand the significance of such agreements and avoid signing an agreement that may be detrimental to any financial claims on divorce.