Boodle Hatfield successfully defends High Court French pre-nup

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23 Nov 2022

Boodle Hatfield successfully defends a French pre-nuptial agreement in the High Court

Leading private wealth Law firm, Boodle Hatfield, has secured a significant High Court victory which has been reported under the name of CMX v EJX [2022] EWFC 136.

During the course of the trial which took place in October 2022 Partner, James Ferguson and Associate, Katie Male through Leading Counsel successfully persuaded the court of the validity of a French marriage contract on behalf of their HNW husband client. The marriage contract had been entered into by the parties 28 years ago and as a result of the evidence put forward by the husband and the compelling arguments made on his behalf was held to have a material impact on the wife’s financial award, reducing this from 50% of the overall assets to a sum assessed to meet her reasonable needs. The argument and oral evidence centred around to what extent the wife could be said to have had a full appreciation of the implications of signing the contract at the point of entering into it.

In handing down his Judgment in CMX v EJX [2022] EWFC 136, Mr Justice Moor made clear that he was inclined to prefer the husband’s case as to the marriage contract over the wife’s and said that he simply could not accept that she had signed the contract without understanding it. He went on to say, “ I am clear that the Radmacher test for upholding this Contract is satisfied.  Those who sign marriage contracts must understand that it is a significant step with very important consequences.  These contracts will be enforced in France and will not simply be torn up in this jurisdiction.”

The factors cited by Moor J as decisive in his ruling as to the weight to be attributed to the marriage contract were as follows:

  • The notary instructed to prepare the marriage contract was the wife’s family’s notary and it was not suggested by either party that the husband had been involved in this instruction;
  • Even if there was no independent legal advice (which would be rare in France in any event), the notary’s function was to explain the nature and effect of the contract to the parties before they signed it;
  • The wife had been working for three years in a responsible role by the time she signed the contract (while the husband was still a student);
  • There would have been no need to sign any form of marriage contract to achieve what the wife said she understood the purpose of the contract to be (to exclude inherited wealth);
  • The marriage contract did not purport to exclude an award calculated with reference to the wife’s reasonable needs, which otherwise would have rendered the contract unfair.

Partner, James Ferguson comments:

“Mr Justice Moor’s Judgment serves as a helpful reminder of the law concerning nuptial agreements and their rapid growth since the landmark ‘Radmacher’ Supreme Court ruling in 2010, in which it was held that, while pre-nups are not automatically legally binding, they can hold considerable weight in the courts of England and Wales if certain safeguards are followed.

This reported case adds to the growing bank of recent case law concerning foreign marriage contracts, in particular, and their treatment by the English courts.  It also augments the list of cases where Boodle Hatfield have been involved in either successfully challenging or defending a nuptial agreement.  In the Judgment there is reference to the reported 2018 case of  KA v MA  in which James Ferguson, Harriet Errington and Katie Male acted for the wife in overturning a pre-nuptial agreement that our client [the applicant] was pressurised to sign on the eve of the marriage which didn’t meet her reasonable needs on the subsequent divorce.”