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Post-nupital agreement success highlights dangers of consenting under duress
Butterworths Legal Updater
19 February 2007
In A v A [2006] EWHC 2900 (Fam), Mrs A, the estranged wife of the heir to a £40m fortune won a £10m divorce settlement after the court ruled that the post nuptial agreement she was persuaded to sign by her husband had been signed under duress.
Mrs Justice Baron ruled that Mrs A could not be held to the terms of the deal because her "free will had been overborne". Mr A's demands had amounted to undue and unacceptable pressure because they had affected his wife's ability to make "clear, calm or rational decisions".
Mr A discovered in December 2004 that she had had an affair with his best friend. He told her that unless she signed he would not agree to a reconciliation and the marriage would be over. She gave in after he continued to press her, giving her until March 9 2005 to sign or be forced to leave the family home.
Abraham, a family partner at Russell Jones & Walker says the case is significant for any spouse seeking to overturn a settlement alleged to have been in settlement of financial claims arising on divorce, where the agreement has been made after legal advice has been taken, albeit the agreement has been reached under duress.
He says: “ From a family lawyer’s perspective, this was a gripping read. The outcome was predictable on the evidence before the court.”
A significant amount of the court’s time, he says, appears to have been taken up in exploring allegations of professional misconduct levelled against the wife’s solicitors at trial.
“Aside from that, the court had some of the “usual” problems of ascertaining the husband’s likely wealth. The application of the s 25 factors was relatively straight forward, once those other issues were resolved.”
He continues: “It seems advisable that solicitors acting for a payee wishing to allege duress, should consider as a first step, whether the client might be best advised to seek representation elsewhere, if allegations of misconduct are to be avoided.”
The post-nuptial agreement stipulated that Mrs A would get a house worth £3m and £250,000 a year maintenance if the couple broke up, but no capital. The law provides that if a wife remarries her maintenance payments cease but she retains any capital she receives on divorce.
Mr A found out she was seeing his best friend again and filed for divorce. Her lawyers argued that she was pressured into the agreement and should not be bound by it.
Abraham says the husband has announced his intention to appeal, even though he will probably have been advised that the award made to his wife could have been greater.
“It might be cross/appealed by the wife, who after a seven year marriage (preceded by five years cohabitation), with ongoing responsibility for two children aged six and four, and with a husband worth £40 million received an award of £10 million, no more than 25% of the family’s total wealth. I think it unlikely that an appeal by the husband will succeed although an (cross-) appeal, for a greater award to the wife might well.”