In this case, the wife, now aged 59 and the husband, now aged 68, married in 2013.  They had commenced their relationship, which had always been tempestuous, in 2008 and started to live together in 2012.  They separated in 2018 but reconciled later in the same year and entered into a postnuptial agreement. They separated again early in 2020 and the wife issued divorce proceedings in July 2020.

The approximate value of the estate was £4 million.  The husband had been relatively wealthy before the couple began cohabiting.  During their marriage, the husband had bought two properties, one funded through inheritance from his mother and the other from pre-marriage savings in the main. There was no evidence that these properties had increased in value during the marriage.

However, the wife’s financial position had improved during the marriage. The postnup provided that each would retain their separate assets. The husband had paid £10,000 to the wife to relocate and discharged mortgages on her two properties.  The postnup was made without full disclosure of their financial position – and did not consider pensions.

The wife disputed the legitimacy of the postnup, claiming that she had not freely signed it as she had been subject to coercive and controlling behaviour from her husband.  Failing that, she claimed the financial settlement she was to receive according to the postnup did not meet her needs.

The husband disputed both claims, saying that the wife should show cause why she should receive more than the terms of the postnup allowed.  He then changed his claim and argued that the agreement was just a “magnetic factor” in that rather than being determinative, the court should apply weight to the existence of the agreement in determining the amount the wife should receive upon divorce.

At the final hearing of the application for financial remedy orders, the judge concluded that the wife had not been subject to coercive and controlling behaviour from the husband, saying that her “psychological makeup and previous history of relationship breakups had deprived her of being able to make a rational and considered decision as to what was in her best interests”. He also criticised her for bringing a domestic abuse claim in the first instance.

Looking at the postnup, the judge found that it was the wife who had, in fact, proposed the terms in the first place and was happy with its provisions at the time.  However, he found that her judgement had been impaired by her desire to keep the marriage going.

Pre-trial, the husband had offered to pay the wife a lump sum of £375,000. At that stage, the wife’s outstanding costs were over £30,000, making the offer worth around £340,000 to her. She sought a lump sum of £1,030,096 and a pension sharing order over 14.3%.  The husband then offered a lump sum of £465,091 to be reduced pound-for-pound by the amount paid by way of legal fees (worth about £305,685). The wife then sought £1,050,601 and a pension sharing order over 14.3% at that stage.

The judge decided that the postnuptial agreement simply did not meet the wife’s needs and ordered the husband to pay her £378,545, which included a 12.1% share of the benefits in his pension accrued during the marriage – much less than she had asked for, and less than the husband had offered pre-trial. In making this order, the judge commented on the “wasteful expenditure on costs (which exceeded £650,000) and the misconceived steps taken by each of the parties”, which had depleted the total assets. He considered the wife’s approach to litigation “woefully excessive”, that she had “set her sights too high” and criticised the disproportionate legal costs incurred.

The wife’s legal costs were £403,150 – £145,895 more than the husband’s total costs, despite him paying almost all the experts’ fees. The judge ordered that the wife should pay a solicitor’s bill of £70,000 to £80,000, which the judge said was “entirely the result of her prodigal expenditure on costs and her approach to this litigation”.

Bradie Pell, partner and head of Graysons’ family team says:

“Postnups are not strictly legally binding, but if good legal advice is taken, they are fair and full financial disclosure is taken, they can be extremely difficult to challenge – and cost very much less to put in place than pursuing litigation later.  Any challenge would need to be carefully executed, or the challenger may find themselves with costs ordered against them, as in this case.  Family court judges are becoming increasingly willing to make such costs orders – even if the costs have to be paid out of funds that were intended to help meet the challenger’s needs.”

For advice on postnuptial and other marital agreements, contact our family law experts now.

Author: Bradie Pell