The High Court has considered the implications of a French-style prenuptial agreement – a contrat de marriage – which a French couple living in London signed just two days before their marriage.
The couple in Y v Y divorce in May last year after 22 years together- and when they married back in 1991, they had already been living together for two years. They went on to have three children together, each of which attended French schools, and the majority of their married lives have been spent in London due to the husband’s work in banking.
By 2007 the marriage had begun to encounter difficulties and the wife first filed for divorce in 2007. The couple later reconciled before the marriage finally came to an end last year. At the time of the recently published judgement, the former couple were still living under the same roof but the husband was due to move out shortly afterwards.
Following their divorce, the husband’s counsel argued that the wife’s financial claims subject to the strictures of the contrat de marriage, even though the agreement had been signed in France before the couple moved to England. Not unnaturally based on the provisions of French law, the agreement set out the division of assets between the couple.
In a detailed High Court ruling, Mrs Justice Roberts explained:
“Under its terms, the legal presumption under French law was that each would keep his or her own assets, whether in existence at the time or subsequently acquired, separate and free from any claim by the other unless jointly acquired and specifically held in joint (or common) ownership.”
If they had remained in France the agreement would have legally binding. In England and Wales, by contrast, prenuptial agreement do not currently have a fixed status in law and are only taken into consideration by the courts. Earlier this year, however, the Law Commission did recommend the introduction of binding prenuptial legislation.
The husband’s counsel cited the much discussed Supreme Court ruling in the 2010 case of Radmacher v Granatino in arguing that the couple’s agreement should “a central and magnetic prominence in terms of its pull towards a financial outcome for this couple”.
However, the Judge concluded that the wife had had a more “emotionally intuitive” approach the marriage than her husband and that while she had understood the function of the contract when she signed it, she had not had:
“..any proper or informed understanding of the fact that, were the marriage to founder many years down the road and regardless of what their circumstances might be at the time, she would be confined to a financial outcome which resulted in a significant divergence of equality between the parties.”
This is a judgement which cogently sets out the state of the current law in relation to prenuptial agreements and it is well worth a read. We can’t do it full justice in such a short report.
However, there is one other interesting point, one that readers of this blog often enquire about. To whom should child support be paid whilst the children are away at University? This is dealt with by provision of a “roofing allowance” to the parent where the child is usually based. Her Ladyship awarded £20,000 per year plus school fees for the youngest child (the older two are already in their 20s) – a reasonable sum for a wealthy couple living in London and a useful monitor for similar cases. At tertirary stage – i.e. university – the roofing allowance would be set at £5,000, with their father meeting all their other needs direct.
Read the full judgement here.
Photo of the London Eye by Christine Matthews via Wikipedia under a Creative Commons licence