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High Court upholds French pre-nuptial agreement

Wife awarded 40% of assets to reflect existence of agreement

Mr Justice Moor has enforced a French pre-nuptial agreement made in 1994 in financial remedy proceedings in the High Court.

In Z v Z (No2) [2011] EWHC 2878 (Fam) the parties were French. W was aged 50 and H aged 53. Theirs was a 14-year marriage with a period of 4 year cohabitation (subject to one six month period of cohabitation). They had 3 children aged 14, 12 and 9. In June 1994 they entered into a marriage contract in accordance with French law. In July 1994 they married and lived in Paris and moved to live in England in August 2007. In February 2008 they commenced a 3 month trial separation. Before leaving, H signed a letter to W. In July 2008 H told the children that the parties had separated which marked the end of the marriage. In July 2008 W issued a petition in England. In a contested jurisdiction dispute, reported as Z v Z [2010], Ryder J held that the parties were both habitually resident in this jurisdiction on the date on which the Wife presented her petition.

There were assets of £15,088,419. Moor J held that this was undoubtedly a case for equal division of assets absent the French agreement. The issue was whether the marital contract took the case out of 'sharing'. There was no dispute that the agreement was entered into freely and with full understanding of its implications. No formal advice was given by the two notary witnesses and there was no formal disclosure. This did not matter as W knew exactly what the agreement entailed and each party new the financial position of the other.

On the evidence, it was held that the agreement had not been altered and it followed that both parties knew that the agreement was still operative.

The terms of the letter H wrote before leaving were far more generous than could ever have been obtained from a court, given that, if taken at face value, the letter provided that H should pay the W one-half of all his net earnings past and future without time limit (other than any redundancy payment) as well as maintenance of up to €200,000 p.a.  The Edgar guidelines were held to be relevant here: there was no legal advice; and H was under significant pressure. It was held that the letter did not constitute a good reason for departing from the terms of the agreement.

Moor J upheld the agreement but stated that it might have been very different if the agreement had also purported to exclude maintenance claims in the widest sense, but the agreement did not do so. W was awarded 40% of the assets which was held to be a suitable departure from equality to reflect the agreement.

To read the judgment and Alfred Procter's fuller summary, please click here.