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Court applies prenuptial agreement in divorce settlement

Hot on the heels of speculation that prenuptial agreements are to be enshrined in English law, here is a recent case in which the High Court examined the provisions of a prenup between a divorcing couple. The prenup was upheld, after the wife argued it should be disregarded.

In BN v MA, the unnamed foreign couple separated after an 11 year relationship, not long after the wife became pregnant with the couple’s second child. However they had been married for just over a year. Before the couple’s engagement, the husband’s solicitors drew up a prenuptial agreement which was closely negotiated before both parties signed it shortly before their wedding.

On the basis of the couple’s ‘habitual residence’ (residence for legal purposes) in the UK, the wife applied for a full financial settlement.

At the High Court, Mr Justice Mostyn considered the wife’s applications for maintenance pending suit (temporary maintenance during divorce proceedings), ‘interim’ child maintenance and a legal services order (payment of her legal costs).

The judge considered the former couple’s prenuptial agreement. He concluded:

“…the law adopts a strict policy of requiring the demonstration of something unfair before it will open the Pandora’s Box of litigation where there has been an agreement of this nature.”

He added:

“…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.”

He awarded maintenance pending suit and interim child maintenance on the terms set out in the prenuptial agreement

However, Mr Justice Mostyn found that the wife had no entitlement to a legal services order because she had provided highly speculative figures in the light of the couple’s prenuptial agreement. She not provided sufficient detail, and she had also failed to satisfy the court that she is unable to secure a loan to pay her legal costs. She had received offers, albeit at steep rates of interest which the husband would have to pay if she won her case.

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. Guest contributors also regularly contribute to share their knowledge.

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  1. Luke says:

    Having looked at the detail of this case this we have the following:
    (1) The couple had their solicitors fight like cat and dog hammering out the prenuptial agreement.
    (2) The couple were married a very short time.
    (3) There is no possibility of hardship from the prenuptial agreement stipulations – the wife will have a £3,000,000 home and be on nearly £150,000 per annum when spousal and child support are added together.

    The case is so cut and dried that it should have taken 5 minutes in court, all costs should have been immediately made against the wife and she should have been told she is an idiot for even bringing it to court.

  2. Andrew says:

    This case is also a reminder of how grossly unfair legals costs orders are which force one party to pay both sides’ costs.

  3. Tristan says:

    The high priests of justice declare pre-nup agreements will stand “unless the wife can demonstrate” . . . . Plenty of scope within those five words for a nice little legal scrap, isn’t there?

    When it comes to judges giving up a nice little earner, old habits die hard, very hard.

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