If parties have had independent advice (as they always should) then it is very likely that the Scottish Court will respect the prenups and enforce their terms.
Further to our blog on the legal status of pre-nuptial agreements, the High Court in England has made a decision this week refusing to enforce an English pre-nuptial agreement. This decision also notably features the reverse of the usual gender stereotype of a wealthy husband and “needy” wife.
In Luckwell v Limata the wife was the daughter of a very wealthy man. The husband had modest means of his own. The bride’s father gave her a large house in London and insisted that there should be a pre-nuptial agreement to the effect that the husband would have no claim on any of the wife’s property – perhaps fearing that the husband was a gold-digger. In total the couple had entered into three pre-nuptial agreements all designed to protect Ms Luckman’s property. There was also some reciprocal provision in relation to Ms Luckman claiming against Mr Limata’s property…given that at the time of divorce Ms Luckman owned a £6.7 million house and Mr Limata had no assets but over £225,000 debt this proved to be academic (and could quite probably have been foreseen as such at the time of the marriage).
Each party had independent legal advice when the agreement was signed. There was an arguably unfair clause relating to maintenance, but that did not form the major part of the husband’s case. It was because the terms of the agreement did not meet the husband’s reasonable needs that the Court disregarded the pre-nup, giving him £1.2m. The judge emphasised the effect on the couple’s children of living in “relative luxury” with their mother and then staying with their father who would live in “relative penury”.
With this in mind the judge ruled that Ms Luckman must fund a house at a cost of up to £900,000 for Mr Limata’s use until their youngest child reaches 22 years old. When the child reaches that age the house will be sold and 55% of the proceeds will go towards funding a home for Mr Limata’s use for the rest of his life. Ms Luckman will get the remaining 45% back.
On the “reverse gender stereotype” point, it is interesting to note that the judge specifically commented that “if all the facts were the same but the genders reversed, it is inconceivable that the agreements would outweigh making a substantial award to the wife, even if the children were primarily living with the husband and only intermittently staying with her”. This acknowledges the risk of the reverse situation being treated differently…or being perceived to be being treated differently. (Look out for our blog later this week on husbands making financial claims against their wives).
It is also notable that the driving force behind the pre-nuptial agreements appears to have been Ms Luckman’s father. Even grown adults often find their parents involved in providing support and direction throughout their marriage and particularly at the end of a marriage. This was obviously heightened in this case by Ms Luckman’s father’s substantial financial interest in matters.
The above almost certainly would not have been the result if the case had been in Scotland. If parties have had independent advice (as they always should) then it is very likely that the Scottish Court will respect the pre-nups and enforce their terms. Just one more thing to be wary of for couples who move across borders.
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Image credit : ‘England Scotland railway border sign north of Berwick Upon Tweed’ used with kind permission from S Lewins. All rights reserved.
