Category: Marriage

In 2010 the Supreme Court held that, whilst pre-nuptial agreements are not binding in this country, the court should usually give effect to them, unless their terms are unfair. The effect of that ruling has been that many pre-nuptial agreements have since been upheld by our courts, and this has been reflected in the reported cases. However, the recent case Ipekçi v McConnell was an example of the court giving no weight to an agreement.

A look at this case must begin with the background of the parties.

The wife is the great-granddaughter of the founder of the Avon Products business empire. As Mr Justice Mostyn, who heard the case, explained, the vast amount of money generated by the business for the family means that, along with other relatives, the wife is the beneficiary of trusts in the USA with an overall value of at least $65 million. Now, as one might imagine, the trusts, and therefore the wife’s finances, were rather complicated. For the purpose of this post I will not go into those complications. Suffice to say that the wife is, by most measurements, comfortably well off.

The husband, in contrast, is the head concierge of the London Hilton Metropole hotel, earning about £35,000 gross. He has no net capital.

The parties met in New York in 2003, at which time the husband had no money beyond his earnings. The wife lived in London. They began cohabitation in January 2005. They agreed to marry, and a pre-nuptial agreement was suggested, and drafted by the wife’s lawyer. A lawyer was found to give the husband independent legal advice. Rather worryingly, this lawyer happened to be the solicitor who acted for the wife in her divorce from her first husband. The husband met the lawyer for the first time on the 3^rd of November 2005, just three weeks before the marriage, which had been fixed to take place on the 26^th of November.

The terms of the agreement were also slightly complicated. Again, I will not go into the details, but the effect of the agreement was that the husband would, in the circumstances that subsequently arose, not receive anything on divorce. Needless to say, the husband was advised that the agreement was slanted heavily in favour of the wife. Despite this, he signed it on the 11^th of November.

The marriage eventually broke down, and the parties separated in November 2016. Divorce proceedings ensued, and the husband issued a financial remedies application. The application was heard by Mr Justice Mostyn in the High Court.

Mr Justice Mostyn had to decide, as a preliminary issue, what weight, if any, should be given to the pre-nuptial agreement. He had “no hesitation” in deciding that it would be wholly unfair to hold the husband to the agreement. His reasons for this included the following:

1. The agreement specifically stated that it would be governed by New York law. However, there was a defect with the agreement under New York law, which meant that would carry little or no weight there.
2. The husband could not be said to have had a full appreciation of the implications of the agreement, having had no legal advice at all about the impact of New York law. Further, Mr Justice Mostyn was unsurprisingly not satisfied that the solicitor who gave the advice was not compromised, by virtue of having acted previously for the wife in her first divorce. It was, he said, a clear situation of apparent bias.
3. The agreement did not meet any needs of the husband.

Mr Justice Mostyn then went on to decide what the husband was entitled to. He awarded him a lump sum of £1,333,500, of which £375,000 was subject to a charge-back to the wife (or her estate), on the death of the husband.

The case is a reminder of just what the Supreme Court said in 2010: that the courts in this country are not bound by pre-nuptial agreements, and that if it is to be upheld any agreement must be freely entered into by each party, with a full appreciation of its implications, and be fair. And one of the elements of that fairness is that is that the agreement must address the needs of the parties.

You can read the full judgment here.

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“Rules are rules, and must be obeyed”. Or so we are often told. However, even that rule has exceptions, as the remarkable case M v P demonstrates.

The rule in question is quite simple: that if you wish to divorce on the basis that you and the other party have been separated for a particular period (i.e. use that basis to prove the ground for divorce: that the marriage has irretrievably broken down), then that period must have been completed before the divorce petition is presented to the court. Thus if, as in this case, the petitioner wishes to divorce  on the basis that he and the respondent have been separated for at least two years and the respondent consents to the divorce, that two year period must have been completed before the petitioner presents his petition. (It should be noted in passing that it will not be necessary to prove irretrievable breakdown under the proposed no-fault divorce system, so the particular problem in this case will no longer arise if we get no-fault divorce.)

And what if the separation period has not been completed? Well, prior to this case I’m sure any family lawyer would have said that the petitioner has not proved that the marriage has broken down irretrievably, and cannot therefore have his divorce. But it seems that things are not quite that straightforward…

The facts in M v P were somewhat unusual. The parties were married on the 19^th of September 2011. It appears that they never lived together (the husband claimed that the wife refused to share the same household as him). The husband, who was not legally represented, presented a divorce petition on the 14^th of June 2013, on the basis that he and the wife had been separated for at least two years, and the wife consented to the divorce. The wife confirmed in her acknowledgement of the divorce petition that she consented to the divorce. The divorce proceeded, and a decree nisi was pronounced on the 21^st of November 2013, and made absolute on the 24^th of February 2014. Both the husband and the wife subsequently remarried.

I’m sure at this point that the reader will have spotted the problem in this case. If the parties were married on the 19th of September 2011 then they could not have been separated for two years by the time the petition was presented on the 14th of June 2013. The problem finally came to the attention of the court staff in October 2016. The matter went before a district judge, who allowed the husband to amend his petition to rely upon the wife’s ‘unreasonable behaviour’, and directed that the decree absolute remained valid.

The matter was then referred to the Queen’s Proctor. The Queen’s Proctor is an officer of the judiciary, who may intervene in divorce proceedings “to argue before the court any question in relation to the matter which the court considers it necessary or expedient to have fully argued”. The Queen’s Proctor did intervene here, applying to have the decree nisi set aside as it was a ‘nullity’, because the requisite period of separation had not expired before the divorce petition was presented, and the district judge had not had the power to cure the defect by allowing the petition to be amended. Obviously, if the application succeeded, the husband and wife were still married to one another, and had therefore committed bigamy by remarrying.

The Queen’s Proctor’s application was heard by Sir James Munby, the former President of the Family Division. To keep this post to a reasonable length, I will summarise his judgment very briefly. The central question, he said, was: was whether the decrees made by the court were void, or merely voidable. If they were void, then they were nullities, and the parties were still married to one another. If they were merely voidable, on the other hand, he could decide not to have them set aside. He decided that they were voidable (you can read his reasons for this in paragraph 103 of the judgment) and that they would not be set aside. The district judge was right to amend the petition, and therefore the decree nisi would be amended to reflect that the divorce was on the basis of behaviour, rather than separation and consent. Accordingly, the decree absolute remained valid – the parties were divorced, and had not committed bigamy.

To be honest, I found my eyebrows rising a little when I read the judgment. Whilst one obviously has enormous sympathies with the parties – they were victims of the failure of the court to spot the irregularity – the law seems to me to be quite clear, and it had not been followed. It is all very well to say, as Sir James did, that “the modern judicial conscience would revolt” if it were compelled to say that the divorce was a nullity, but the simple fact remained that parliament had decreed that the two years must elapse before the presentation of the petition, and it had not. And to retrospectively alter the divorce to behaviour after the event seems to me to be stretching logic beyond breaking point – the divorce had never happened, so it could not be amended. Still, what do I know, I am just a humble hack, not the former President of the Family Division.

You can read Sir James’s full judgment, including his searing criticism of the unavailability of legal aid for the wife (see paragraphs 116 to 122), here.

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