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Court enforces pre-nuptial agreement in application for interim maintenance

Wife fails to convince the court that the agreement should not be upheld

In BN v MA [2013] EWHC 4250 (Fam) Mr Justice Mostyn has enforced a prenuptial agreement in an application by the wife for maintenance pending suit under s 22 of the Matrimonial Causes Act 1973. The marriage was 15 months old when it broke down.

The husband and wife are 55 yrs and 40 yrs respectively. They commenced a relationship in 2002. Their son was born in August 2005. The relationship was initially on and off but the parties resumed a fuller relationship in 2007 and became engaged in 2009. The parties married in June 2012. In March 2013 the wife became pregnant with their second child (due in February 2014) but the marriage broke down shortly after, in August 2013.

Following the engagement, a draft prenuptial agreement was produced by the husband's solicitors on 22nd February 2010 and between then and May 2012 the agreement went back and forth, solicitors being involved. In the period immediately before 30th May 2012 the agreement was, according to the husband, intensely negotiated, leading to the parties signing what is described as a "premarital agreement" on 30th May 2012.

The wife petitioned on the basis of both of the parties' habitual residence in the UK in September 2013 and issued a Form A seeking the full range of financial remedies.

Having considered in detail the provisions of the agreement and the mechanics of its negotiation and agreement, Mostyn J, concluded:

"[I]t must be obvious that the principal object of the exercise in this case (as indeed in every case where a nuptial agreement is signed) is to avoid subsequent expensive and stressful litigation; and it is for this reason, as will be seen, that 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."

After considering the law on prenuptial agreements and how it applied to the present agreement, Mostyn J found:

"….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:

The court decided that the wife had no entitlement to a costs allowance. Since the husband had been successful in the application for maintenance pending suit (but his position was only made unambiguously clear late in the day), the court made a costs order against the wife for 75% of the husband's costs to be assessed on a standard basis.

Philip Marshall QC of 1 King's Bench Walk (instructed by Withers LLP) represented the wife. Brent Molyneux of 29 Bedford Row (instructed by Alexiou Fisher Phipps) represented the husband.

The judgment and summary by Lily Mottahedan of 1 Hare Court are here.