“No Pre-Nup; no wedding” – is That Undue Pressure?

09 May 2018

In the recently reported decision of Mrs Justice Roberts in KA v MA, the high court was faced with a wife, who after an eight year marriage, argued that no weight should be attached to her pre-nuptial agreement, in part because she alleged that she signed it under undue pressure; without the agreement she knew that there would be no wedding.

Both parties had been married before, and the husband had three children from his first marriage. It was accepted that the husband had endured a difficult first divorce and that he had been explicit with the wife from the outset of their relationship that he did not want to get married again.

The parties had a child together and the wife became increasingly concerned about the family not sharing a surname. Over time the husband’s position softened and he agreed to marry the wife but only on the condition that she signed a pre-nuptial agreement. The wife accepted that when she booked the wedding reception at the local hotel, she did so fully in the knowledge that the wedding would not go ahead unless by then she had signed a pre-nuptial agreement.

Lawyers were instructed on both sides and a pre-nuptial agreement duly prepared on the husband’s instructions. The wife accepted that she had been properly advised by her lawyers as to the rights she was potentially surrendering, and that she had intended to be bound by the terms of the pre-nuptial agreement.

The wife said that she was desperate to get married; that she felt under considerable pressure and in no position to negotiate with the husband. The parties had a huge row in the days before the agreement was signed and it was accepted that the wife had telephoned her lawyer distressed and in tears. All that being the case, 18 days before the wedding the wife signed the pre-nuptial agreement.

Following the breakdown of the marriage, the judge had to consider whether the taking of a ‘no pre-nup; no wedding’ stance could of itself amount to improper pressure sufficient to propel the resulting agreement into the realms of unfairness.

While reminding family lawyers that every case has to be looked at through the prism of the facts which underpin it, the judge held that this was not a case where the husband made overt threats to the wife, and his stance was not found to be capable of constituting duress or exploitation of a dominant position.

In this case, the husband was not able to persuade the judge that his wife could re-house and meet her expenditure needs adequately with the amounts envisaged in the pre-nuptial agreement, but nor was the judge prepared to endorse the wife’s requests that her needs should be considered without any reference to what she had signed.

This was a long relationship, with total assets of £20-30 million where the family had an annual spend of in excess of £1 million. The wife received £1m plus purchase costs for a housing fund and £1.6 million as a capitalised income fund based on a net annual spend of £100,000 reducing to £75,000 when their child completed university. This was a considerably better result for the husband than would have been the case without the pre-nuptial agreement.

Absent very compelling evidence that a pre-nuptial agreement was procured in circumstances that would make it unfair to give any weight to it, the court will not ignore such an agreement. The objective remains the search for fairness but such an agreement will be an important factor in determining what is fair.

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About the Author

Emily Kapoor

Legal Director, Family

​Emily has a wide breadth of experience in all areas of family law, with a particular focus on divorce and high value financial claims

646 934 6219