Traharne v Limb: The amagnetic post-nup

Image: Public Domain, via Piqsels

I'm sure I've commented before about how family law judgments are like buses: you see none on a particular topic for ages, and then two come at once. And so it is with the topic of post-nuptial agreements. Just a couple of weeks ago it was WC v MC, and now it's Traharne v Limb.

The latest judgment concerned the final hearing of the wife's financial remedies application, heard by Sir Jonathan Cohen at the RCJ over 4 days in February/March. As we are told in the very first paragraph, the husband had originally applied for the wife to show cause why she should receive any award in excess of the terms of a post nuptial agreement they had entered into in November 2018, but he subsequently modified his case to argue that the agreement was merely a "magnetic factor".

The next thing that I can't help remarking upon comes in the second paragraph, when Sir Jonathan casually comments: "This is not a big money case. The total assets of the parties are only a little over £4m." Hmm. To me, this says two things: firstly, how the other half lives - I'm sure the vast majority of the population would think that £4m was actually a very big amount of money; and secondly, it is a reminder that the courts, and especially the higher courts, are primarily a playground for the better off - how many truly small money cases ever appear in the law reports?

Anyway, moving on Sir Jonathan then gives us the depressingly familiar news that the assets of the parties had " been severely depleted by the wasteful expenditure on costs and the misconceived steps taken by each of [the parties] in this litigation, so that the total costs incurred exceed £650,000." Ouch.

As to the post-nup, the parties' respective positions were as follows. The wife argued that it should be afforded no effect as the husband had coerced her into signing it. In the alternative she argued that it did not meet her needs. The husband unsurprisingly argued that the wife had not been coerced into signing the agreement, and that in any event it did meet her needs.

In fact, the suspense as to how these arguments would play out was immediately broken by Sir Jonathan, who explained in paragraph 7 of his judgment that the agreement did not meet the wife's needs, due to the glaring omission that it failed to deal with the issue of pensions. Oh dear.

So to the facts. The wife is now 59 and the husband is 68. They married in January 2013, despite the fact that: "Both had considerable doubts about the prospective marriage and there had already been arguments and an incident between the parties". We are also told that: "They had each both separately seen and confided in a priest." Which just goes to show that asking someone who has never done so how to ride a bike is not perhaps the best course of action.

Inevitably, the marriage quickly ran into difficulties, with the wife moving in with her daughter in the summer of 2013, due primarily to the husband's "intolerable behaviour".

Skipping ahead, in 2018 the wife petitioned for judicial separation, and in May that year the parties entered into negotiations in relation to the execution of a separation agreement. However, in the event the parties reconciled, and the separation agreement became a post-nuptial agreement. The agreement provided essentially that the parties would retain their separate assets, the husband having paid £10,000 to the wife to relocate, and having discharged the mortgages on the wife's two properties.

But alas the reconciliation didn't last long, and the parties finally separated in early 2020. The wife then issued divorce proceedings, followed by a financial remedies application.

Despite giving the game away early, Sir Jonathan goes into a little more detail much later in his judgment as to his findings regarding the post-nup. He said that whilst the wife's 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, this was not caused by the husband's conduct. The husband's behaviour could not be described as coercive or controlling, or that it led to the wife entering into the agreement.

And of course exploring this argument was entirely unnecessary, in the light of Sir Jonathan's findings regarding the wife's needs. The agreement simply did not provide her with sufficient income in retirement.

So what were the wife's needs? For the purposes of this post I don't think I need go into the details. Suffice to say that they did not include the provision of a garden office, as the wife had claimed (!), but did include an income fund, a capital requirement and a pension share, totalling £378,545.