In White v White, (a court decision from 2000) the House of Lords made it clear that fairness required that there should be no discrimination between men and women. It was a principle of 'universal application' that there be no discrimination between husband and wife in their respective roles. There should be no bias in favour of the money-earner and against the homemaker and childcarer.
In the well reported 2011 case of Granatino v Radmacher, the Supreme Court substantially reduced the award in favour of the husband as a consequence of the existence of the Prenuptial Agreement that the parties had entered into. Following this decision, many commentators asked the question 'would the outcome have been any different if the award had been in favour of the wife instead of the husband?' Would the court have been more sympathetic to a woman attempting to get out of a Prenuptial Agreement than a man?
It seems that the court has now gone some way to answering these questions by indicating that it makes no difference and the relevance of a Prenuptial Agreement can cut both ways. In V v V the total capital assets of both parties came to £1,289,347 of which almost 90% was in the husband's name. Notwithstanding the existence of a Prenuptial Agreement, the judge who initially heard the case awarded the wife a lump sum of £667,100 which, together with the assets in her name, gave her a capital of about £800,000. In addition, she was awarded periodical payments, or maintenance, of £30,000 a year. Not unsurprisingly, the husband appealed this decision and his appeal was successful.
The apparent justification for the wife receiving the 'lion's share' of the capital had been her need to acquire a suitable property to be occupied by herself and the children. It was accepted that she needed such a property but the husband argued that it was unfair for the wife to receive sufficient to buy that property outright particularly in the light of the Prenuptial Agreement that the parties had entered into. Instead the property purchased should be subject to a chargeback in his favour. It seemed accepted that the wife had wanted to marry but the husband had requested a Prenuptial Agreement because he was 10 years older and had accumulated wealth before meeting the wife. The proposed agreement was to protect that wealth.
On appeal the court decided that the Prenuptial Agreement was a factor that should be given weight to give proper respect to the autonomy of both parties who, on the facts, had entered into it honestly, freely and knowlingly. The judge who dealt with the appeal therefore decided that the property to be purchased should be subject to a chargeback in favour of the husband representing 33.3% of the amount of the lump sum. This was to represent the difference between what the wife would need to spend to house both herself and the children compared to what she would need to spend just to house herself.
The members of the BDB family team regularly advise clients in connection with the preparation of Prenuptial (and Pre-civil partnership) agreements and their relevance within divorce or dissolution proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
