The facts: The facts of this case should be well known to all, but for those who are unaware of them (where have you been?) they are, briefly, as follows: The husband is French and the wife, who is of substantial wealth, is German. Prior to their marriage they signed a pre-nuptial agreement in Germany (where it was valid), which provided that in the event of dissolution of the marriage neither party was to make a monetary claim against the other in any ancillary proceedings. The parties lived together for the majority of their marriage in London and have two children of whom they share custody. The wife currently resides in Germany, the husband in London. The parties were divorced in this country, and the High Court awarded the husband £5.6 million. The wife appealed and the Court of Appeal allowed her appeal, broadly on the grounds that the High Court had not given sufficient weight to the existence of the agreement, though still providing the husband with some housing and other funds to reflect the shared residence of the children. The husband appealed to the Supreme Court.
The decision: The Supreme Court dismissed the appeal, by a majority of 8 to 1, with only Lady Hale dissenting. The President, Lord Phillips, gave the substantive judgment. He made it clear (at paragraph 7) that:
"There can be no question of this Court altering the principle that it is the Court, and not any prior agreement between the parties, that will determine the appropriate ancillary relief when a marriage comes to an end, for that principle is embodied in the legislation."The question, therefore, was the weight to be given to the agreement. He identified three issues raised on the facts of this case (paragraph 67):
"a. Were there circumstances attending the making of the agreement that detract from the weight that should be accorded to it?The answers to these three questions were: (a) There were no such circumstances (paragraph 117); (b) The foreign element demonstrated the intention of the parties that the agreement should, if possible, be binding upon them (paragraph 108) ; and (c) It is fair that the husband should be held to the agreement and it would be unfair to depart from it (paragraph 123).
b. Were there circumstances attending the making of the agreement that enhance the weight that should be accorded to it; the foreign element?
c. Did the circumstances prevailing when the court’s order was made make it fair or just to depart from the agreement?"
For these reasons, the Supreme Court found no error of principle on the part of the Court of Appeal, and therefore dismissed the appeal.