Legally binding post-nups under the spotlight again

The High Court has rejected a woman's claim that she signed a post-nuptial agreement under duress or undue pressure from her ex-husband.

The claimant married wealthy property developer William Hopkins, whom she had known for a long time, in April 2009. However, the marriage failed in two years. There were several attempts at a negotiated reconciliation but in February 2011 William Hopkins began divorce proceedings.

Later that month he suggested to the claimant that they should sign a post-nuptial agreement in which she would acquire two properties, a car and £75,000 in full and final settlement of her financial remedy claims.

This took place several months after the Supreme Court gave judgment in the Radmacher case which established that the English courts would enforce properly made marital property agreements.

Discussions continued over the following month with the claimant’s solicitor warning her not to sign anything at least until Mr Hopkins had made proper financial disclosure. The solicitor advised her that Mr Hopkins probably had assets over £30 million of which she would be entitled to a significant proportion on divorce. He also confirmed, in writing, that he would proceed with the post-nuptial agreement if so instructed but would ask her to sign a disclaimer that this was against his advice.

Though the claimant asserted that she was being 'intimidated' she ultimately decided that her main priority was to end the relationship while remaining on good terms with Mr Hopkins.

After some re-negotiation of the proposed post-nuptial agreement, resulting in a settlement of broadly £2 million, the claimant declared several times to her solicitor that she was happy with the agreement, though she later said that she only wrote these emails at her husband's behest.

The claimant’s solicitor then obtained an opinion from specialist counsel to the effect that the agreement was unfair but because of its clarity it would be upheld by a court. He passed this opinion on to the claimant but on 4 August she instructed him to date the document to make it binding.

Sixteen months later she filed an application to challenge the consent order reflecting the post-nuptial agreement.

She claimed that the agreement was vitiated 'by duress, or undue pressure, or the exploitation by the husband of a dominant position over the wife, after taking into account the wife's emotional state and the pressures which it is said that she was feeling under at the time'.

She also claimed that she had not read her legal advice 'or sufficiently absorbed it prior to concluding the agreement, because of the pressure she alleges [were] placed on her by the husband'.

At one point in the discussions, she alleged physical violence/intimidation which was denied. The claimant contended that entering into the agreement contrary to advice from solicitors and counsel was itself evidence that she did so under duress.

However, Judge Nicholas Cusworth QC did not accept her arguments. He noted that her claim not to have understood her legal advice was weakened by her several visits to a specialist matrimonial solicitor concerning the marital breakdown. Her email exchanges with her solicitor also indicated 'a significant understanding of the content' of his advice not to sign the agreement. Further, she had signed a clear and unequivocal disclaimer declaring that she understood and rejected her solicitor’s advice.

Nicholas Cusworth QC rejected the idea that she was operating under undue influence, duress or improper pressure, summarising 'There is no credible evidence to support the wife's assertion that during the relevant period she was being "controlled" by the husband'.

The judge decided that the claimant had signed the agreement freely and with full advice, was rational at the time, and knew that it was a watertight and binding agreement. The post-nuptial agreement, increased by a further offer of £200,000 from Mr Hopkins towards his ex-wife's legal costs, was upheld.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.

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