In the landmark case of Radmacher v Granatino  UKSC 42, the Supreme Court stated that:
“The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation
of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.”
In the recent case of WC v HC (Financial Remedies Agreements) (Rev1)  EWFC 22, the Honourable Mr Justice Peel, sitting in the Family Court was asked to decide whether an unsigned post-nuptial agreement fell under Radmacher, in that it would be upheld unless doing so would result in unfairness, or disregarded altogether.
The conclusion was somewhere in the middle of the aforementioned extremes.
The wife felt under pressure during negotiations
The couple concerned were living in Switzerland when the husband (H) said he wanted a post-nuptial agreement as the wife (W) wanted the family to return to England for the children’s schooling. H told W he would not allow
her to move with the children without a post nuptial agreement being drafted and signed.
During the 2017 negotiations, W messaged a friend saying she felt “blackmailed…powerless…cornered … abused”.
On 22 August, W’s solicitors approved the post-nuptial agreement and the next day, H’s solicitors did likewise. The parties were due to sign the documents six days later, however, on the day, a doctor certified W was showing “true mental distress”, unconducive to “calm decision making”. W emailed H explaining she was worried about signing previously unseen Swiss documents. She said she would sign the English agreement but never did.
W subsequently moved to England with the children. The relationship broke down and divorce proceedings began.
Was the unsigned post-nuptial agreement enforceable?
Mr Justice Peel concluded that although W had been under pressure to sign the post-nuptial agreement there was no undue pressure.
“I am satisfied that although W and H were under pressure, W was not under undue pressure to enter into it. In almost every Pre or Post Marital Agreement one or other, or both, parties are under a degree of pressure, and emotions may run high. The collision of the excitement engendered by prospective marriage, and the hard realities of negotiating for the breakdown of such a marriage, can be acutely difficult for parties. Tension and disagreement may ensue. If, as here, one side of the family is applying pressure, the difficulties are accentuated. But in the end, each party has to make a choice and unless undue pressure can be demonstrated, the court will ordinarily uphold the agreement. In my judgment, W cannot so demonstrate here.”
Furthermore, W had received independent legal advice, therefore, the agreement could not be simply ignored. Indeed to do so would be contravening section 25 of the Matrimonial Causes Act 1973 as the court would not be considering the full circumstances of the case.
“Although not a strict Radmacher agreement, this was an agreement reached by the parties, with the benefit of legal advice, and upon full disclosure. Even though W did not sign it, in my judgment I am entitled to take it into account and attach such weight to it as I think fit. It is one of the factors, to be considered in the mix. The terms agreed … are relevant, albeit not determinative.”
Mr Justice Peel subsequently awarded W £7.45 million, which was about 60% of the total assets of £12.47 million which “approximates to that which was contained within the Post-Marital Agreement but goes beyond it so as to meet what I consider to be W’s needs judged against all the relevant factors.”
This case illustrates two points:
a) The court sets the bar for undue influence relatively high. In cases involving significant wealth, especially family wealth on one side, a certain amount of pressure is to be expected. In fact, all negotiations involve pressure which is why it is vital to have independent legal advice from an experienced family law solicitor who can provide the pragmatic guidance required to protect their client’s best interests.
b) If the nuptial agreement satisfies the three-part test in Radmacher, namely that it was:
- freely entered into,
- both parties understood the agreement, and
- it is reasonable to hold both parties to the agreement
then it will be considered as forming part of the circumstances of the case, even if one party failed to sign the document.
This case does turn on certain specific facts, for example, Mr Justice Peel noted that W did not attempt to renegotiate the agreement and her solicitor had signed the document. The case may have been decided differently if these factors had not been present. However, for the agreement to fall completely outside Radmacher, W would have had to prove, on the balance of probabilities, that it was either not freely entered into, she did not understand the terms, or it was completely unfair to uphold the agreement.
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