(Family Division, Francis J, 22 December 2016)
Financial remedies – Jurisdiction – Prenuptial agreement – Prorogation – Married Women’s Property Act 1882
Orders were made in financial remedy proceedings including, inter alia, an order for sale of the matrimonial home pursuant to the Married Women’s Property Act 1882.
The Swedish husband and wife were married for 14 years and lived in the UK from 2009. Prior to the marriage the husband provided the wife with two pre-nuptial agreements which she signed in Canada and the USA. Pursuant to the agreements each party would retain the assets held in their own names and would have no claim on the other party in the event of divorce. The agreement also contained a clause proroguing the jurisdiction of the Swedish court. The wife received legal advice that she should not sign the second document which she chose to ignore.
When the marriage broke down the wife applied for all forms of financial relief and for provision under Sch 1 of the Children Act 1989. The husband applied for an order for sale of the family home pursuant to s 17 of the Married Women’s Property Act 1882.
The total assets available amounted to £10.86m including the family home, the only asset held in the joint names of the parties, which had equity of £1,819,533, a Swedish property, an equity portfolio and bank account.
The court held that both parties consensually entered into one or more prenuptial agreements and that at the time they were entered into, the effect of the agreement(s) was not vitiated by fraud, misrepresentation or undue pressure. Further, both were clear that the agreements contained a Swedish forum clause. Therefore, the English court’s jurisdiction was confined to dealing with the rights in property arising out of the marriage. The wife’s maintenance claims had to be stayed and determined in Sweden.
The effect of the pre-nuptial agreement would leave the wife with £656,000. Applying the reasoning in Radmacher to the circumstances of this case, such a division would be unacceptably unfair to the wife and would adversely affect the best interests of the children. It would be wrong to disregard the agreement entirely. The housing needs of the wife and children could not be met from the net value of the wife’s share in the family home. However, the terms of the Maintenance Regulation prevented the court from ordering the husband to make a lump sum payment to the wife for the purpose of purchasing a property for herself and the children.As regards the Sch 1 claim, a sum of £2m would be fair to meet the children’s housing needs including costs of purchases. That sum would be available until 12 months after the children ceased full time education. Periodical payments of £95,000 pa would be made to the wife in respect of a carer’s allowance for herself and the children. An order for sale pursuant to the Married Women’s Property Act 1882 would be made and the net proceeds of sale divided equally between the parties.