An English judge and a French prenuptial agreement

Updated January 2012

In the recent matter of Z v Z (No2) [2011] EWHC 2878 (Fam) Mr Justice Moor was tasked with considering the efficacy of a French prenuptial agreement in a 14 year marriage. This case comes in the wake of 2010's Radmacher v Granatino [2010] UKSC 42 where 8 of 9 of the panel of Supreme Court Judges held that a German pre-nuptial agreement should be upheld.

In Z v Z, the parties were French and had entered in to a Separation de Biens in 1994, days before their marriage. The agreement provided for the wife to surrender any right to share in the couple's assets in the event of separation. However, the agreement did not make any provision for maintenance. The couple have three children and the assets totalled £15 million. Over 90% of the assets were in the husband's name.

Although the wife had no independent legal advice and there had been no disclosure of the parties' assets prior to the signing of the agreement, before the hearing the wife accepted that she had understood the meaning of the agreement and that she was aware of the husband's financial position.

The husband argued that because the couple had willingly entered into a prenuptial agreement, the sharing principle should not apply and that 35% of the assets, (£5.2 million) would be enough to meet the wife's maintenance and housing needs. In contrast, the wife's position was that she was entitled to 50% of the assets (£7.5 million). By the time of the hearing, it had been agreed that if the Separation de Biens had not been in place, a 50/50 division of the assets would have been inevitable.

At the final hearing, Mr Justice Moor found that the wife should be held to the prenuptial agreement. The Judge rejected her contention that the parties had only entered into the agreement to protect the wife from the possibility of the husband's business debts. There was also much discussion about several drafts of a piece of paper the wife had made the husband sign in 2008 which attempted to exclude the prenuptial agreement. It was found that in any event, a letter between the parties would not have the effect of altering the Separation de Biens as under French law, any amendments to the way that matrimonial property is held must be by a subsequent notarised agreement. Taking account of the wife's needs, the wife was awarded 40% of the assets.

Similarly, the recent case of V v V [2011] EWHC 3230 (Fam) also placed greater weighting on a prenuptial agreement which historically would have failed the test. In that case, the agreement was not only fairly brief in content but also the wife was not advised on the terms of the same nor was there detailed disclosure in respect of some of the husband's assets at the time.

Despite this, the court felt there was clearly a common understanding as to the purpose of the agreement when the parties entered into it and the court should not interfere with the autonomy of the parties. Although the needs of the wife and the children had to be met, the pre-nuptial was not ignored, and the husband's eventual share was greater than 50% as a result.

Are you pro or anti prenuptial agreements?

For those that may worry that all this talk of contracts and finances prior to marriage is rather unromantic, consider the words of Katrin Radmacher on the day that the Supreme Court upheld the prenuptial agreement in her favour: "I know some people think of prenuptial agreements as being unromantic, but for us it was meant to be a way of proving you are marrying only for love".

If you are thinking of entering into a pre-marital agreement or would like advice on protection of your assets at any stage in your relationship, please contact Natalie Drew. Natalie is an associate in TLT's Family team who acts for a wide range of clients in areas including premarital agreements, divorce, separation, cohabitee disputes, harassment issues and domestic violence. She has particular expertise in cases involving children.

This publication is intended for general guidance and represents our understanding of the relevant law and practice as at January 2012. Specific advice should be sought for specific cases; we cannot be held responsible for any action (or decision not to take action) made in reliance upon the content of this publication.

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