By Stewert Sandbrook-Hughes
Mr and Mrs Crossley were married in January 2006. The couple had brought substantial wealth to the marriage; the husband’s wealth was estimated at £45m and the wife’s at £18m. They entered into a pre-nuptial agreement that stated that both parties would walk away from the marriage with what they had brought into it. The wife petitioned for divorce in August 2007 and sought to diminish the importance of the pre-marital agreement by claiming that the husband had failed to disclose substantial assets.
The wife appealed the decision of Bennett J at first instance, and the Court of Appeal handed down judgment on 19th December 2007. Thorpe LJ upheld the first instance ruling that had been based upon the existence of the pre-marital agreement, the fact that it was a short marriage with no children and that both parties were wealthy in their own right. Thorpe LJ described the facts of the case as exceptional and added that, “if ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors in the case but as a factor of magnetic importance, it seems to me that this is just such a case.”
The decision does not change the law in terms of whether or not pre-nups are recognised under English law, only Act of Parliament would achieve this. Therefore, for the time being pre-nups will simply remain one factor to be considered when conducting the s.25 exercise. This judgment emphasises that cases are highly fact-specific; the facts in Crossley were exceptional, involving, in addition to the agreement, a marriage between independently wealthy mature adults and a very short, childless marriage. In conclusion, cases involving pre-nups are likely to be of little relevance to the everyday marriage possessing modest assets, children, or a marriage of any significant duration.
The Law Commission is to begin a project on the use of pre-nups in marriages and civil partnerships in September 2009, with a draft bill expected in September 2012.
