The Court of Appeal’s recent judgement in Brack v Brack has renewed the focus on the court’s duty to exercise discretion when considering unfair pre-nuptial agreements. Judges may make a financial award over and above needs if would be fair to do so on the facts of the case.

Nearly a decade has passed since Radmacher v Granatino [2010] held that prenuptial agreements (“PNAs”) are capable of altering what is fair in financial proceedings. In the years that have followed, the courts have been increasingly willing to recognise the individual autonomy of married couples, generally holding that PNAs modify the application of the sharing principle in situations where it is fair to do so.

This particular case concerned three PNAs which Francis J determined would work exceptional unfairness if upheld.  Despite this, he held that since the PNAs had no vitiating factors, he was bound to only invade the husband’s separate property to the extent required to meet the wife’s needs.  The wife asked the Court of Appeal to determine whether Francis J was wrong to conclude that the unfair PNA automatically stripped her of her right to a sharing claim.

Francis J’s decision tallies with the court’s general readiness to recognise the principle at the heart of Radmacher. However, judges have been left with no hard and fast rules on what to do in circumstances where a PNA is fundamentally unfair. In navigating this blank space, the courts have held that fairness requires departure from an unfair PNA only to the extent that needs are met (often in the form of Schedule 1-type orders, such as that made in Luckwell v Limata (2014)). It is against this backdrop that Francis J made his decision.

However, in the Court of Appeal, Lady Justice King said that Francis J felt himself to be in a “straitjacket” of past case law, such that he was driven “inexorably” to conclude that he was precluded from making anything other than a needs-based order. For this, Lady Justice King found that he “did fall into error”, as he had failed to exercise his discretion and apply all the section 25 factors to the facts of the case.

In practice, this judgement does not dramatically change the enforceability of prenuptial agreements in the English courts. It merely re-affirms the duty of the court to use their wide discretion and to consider all the Section 25(2) MCA factors when assessing fairness in financial proceedings. Radmacher made it clear that the individual autonomy inherent in a freely drafted PNA will only be respected where it does not prejudice the reasonable requirements of the wife and children. This case serves as a further warning to the richer party that where a prenuptial agreement is valid save as to the adequate provision for needs, the orders available to the court are not limited to Schedule 1 type awards.