Judge upholds 'sub-optimal' prenup

A judge has upheld the terms of a pre-nuptial agreement despite criticising it as a ‘piece of sub-optimal drafting’. London firm Mishcon de Reya, which represented the husband, said the judgment is significant for pre-nuptial agreements, which are currently not automatically enforceable.

In IC v AD, His Honour Judge Edward Hess, sitting in the Central Family Court, said the pre-nuptial agreement was the issue that divided the couple the most in the dispute, which racked up more than £1m in legal costs. The case involved total overall assets of £26.6m.

Case law currently governs the status of nuptial agreements. In 2010, the Supreme Court held in Radmacher v Granatino that they should be given decisive weight unless the agreement is unfair.

Hess, in the present case, said the couple freely entered into the agreement and he rejected the wife’s claim that she always thought the agreement related only to two properties the husband owned before they got married.

Hess said the agreement ‘represents a piece of sub-optimal drafting’ and was ‘not a model of clarity’. However, ‘I have found it difficult on the facts of this case to identify any feature of the case which would cause me to depart from an implementation of the pre-nuptial agreement on the basis of anything other than need. To do otherwise would in my view not be giving suitable respect for the deliberate policy decision made in the Supreme Court in Granatino v Radmacher (supra), which is of course binding on me’.

In a post last Friday, Mishcon said the case ‘serves as a timely reminder of the court's willingness to uphold the terms of validly entered nuptial agreements unless it would be unfair to do so, or the agreement fails to adequately provide for needs’.

Parliamentarians such as Baroness Deech (Ruth Deech DBE KC) and Baroness Shackleton (solicitor Fiona Shackleton) have long called for prenuptial agreements to enter the statute book. The Law Commission first recommended the introduction of binding nuptial agreements, supported by safeguards, in 2014. However, the recommendation was not taken forward. Following a 2024 scoping paper in which the commission looked at the matter again, the government recently consulted on the introduction of ‘qualifying’ agreements.