CA-2024-000509 - [2025] EWCA Civ 1055

The inevitable starting point, and indeed the only authority which the judge found it necessary to consider, is the Supreme Court’s decision in Granatino v Radmacher (“Radmacher”) [2010] UKSC 42, [2011] 1AC 534.

The facts of Radmacher are well known. As here, the wife was a woman of considerable wealth. She entered into a pre-nuptial agreement upon the insistence of her father. In Radmacher, no disclosure was made by the wife and the husband did not have any independent legal advice. The effect of the agreement in both cases was that neither party was to derive any interest in or benefit from, the property of the other during the marriage or on its termination. Lord Phillips, at para. [2] of his judgment, identified that the appeal raised the “question of the principles to be applied to an ante-nuptial agreement”.

The first stage of the analysis is that identified at para. [67] namely: “Were there circumstances attending the making of the agreement that detract from the weight that should be accorded to it”.

In that context Lord Phillips said at para. [69]:

“…we consider that the Court of Appeal was correct in principle to ask whether there was any material lack of disclosure, information or advice. Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this. But if it is clear that a party is fully aware of the implications of an ante-nuptial agreement and indifferent to detailed particulars of the other party’s assets, there is no need to accord the agreement reduced weight because he or she is unaware of those particulars. What is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end.”

(original emphasis)

At para. [71] having referred to Edgar v Edgar [1980] 1 WLR 1410 he went on to say that:

“71.

The first question will be whether any of the standard vitiating factors: duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.

72.

The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. The circumstances of the parties at the time of the agreement will be relevant. Those will include such matters as their age and maturity, whether either or both had been married or been in long-term relationships before. For such couples their experience of previous relationships may explain the terms of the agreement, and may also show what they foresaw when they entered into the agreement. What may not be easily foreseeable for less mature couples may well be in contemplation of more mature couples. Another important factor may be whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed. This may cut either way.

73.

If the terms of the agreement are unfair from the start, this will reduce its weight, although this question will be subsumed in practice in the question of whether the agreement operates unfairly having regard to the circumstances prevailing at the time of the breakdown of the marriage.”

It is clear that Lord Phillips envisaged that the starting point for the first stage of his analysis required the application of conventional legal principles under which duress, fraud or misrepresentation can result in an agreement being of no legal effect: “the standard vitiating factors”. The remainder of Lord Phillips’s first stage of the analysis concerns cases in which the pre-nuptial agreement is not vitiated by any such factors, but where the weight to be attached to it might be reduced, or eliminated altogether, by factors such as undue pressure falling short of duress.

In WC v HC [2022] EWHC 22, (‘WC v HC’), a case where the allegation was that the wife had been put under undue pressure to agree a post-nuptial agreement, Peel J summarised this first stage of the analysis in the following way:

“22.iv) The first question will be whether any of the standard vitiating factors, duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it (para 71). The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. (Para 72).”

In Radmacher, having briefly disposed of the foreign element, Lord Phillips moved on to consider what impact the existence of an agreement, which was not vitiated or otherwise devalued by unconscionable or unworthy conduct, would have on the requirements of fairness. It was at this second stage of the analysis that Lord Phillips articulated what has become his seminal proposition to be applied in cases of both ante- and post-nuptial settlements:

“75.

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 their agreement.”

MN v AN (Prenuptial Agreement) [2023] EWHC; [2023] 2 FLR 756 was another case where the allegation was of undue pressure. Moor J again proceeded at para. [76], by reference to the now well established route of performing a two stage exercise, first by considering if there were any circumstances which should “eliminate or reduce the weight to be attached to the agreement” and second to see that the agreement operated fairly having regard to all the section 25 MCA factors including marital standard of living and needs, reminding himself that the children were the court’s first consideration.

It follows therefore that the judge’s first task was to consider, whether any of the standard vitiating factors were present by reference to all the evidence and in particular the facts and circumstances leading to the signing of the agreement,