When is someone vulnerable at the time of signing a prenuptial agreement?

There has been a huge increase in the allegation of coercive and controlling behaviour in family cases. This behaviour is now capable of being a criminal offence. It has been incorporated into a wider statutory civil law definition of domestic abuse.

In Traharne v Limb (2022) the High Court had to deal with coercive and controlling behaviour in a financial case on divorce. The parties had signed a prenuptial agreement.

Prenuptial and postnuptial agreements are not binding in English law. But they will usually be persuasive in holding the financial award down in most cases. There has to be unfairness to persuade the court to move away from the agreement.

The court will not give agreements any weight where there is evidence of fraud, a mispresentation of facts, or other improper conduct. A party’s emotional state and vulnerability prior to signing the agreement might be relevant.

The judge said in Traharne: “Coercive and controlling behaviour would plainly be an example of undue pressure, exploitation of a dominant position or of relevant conduct. It would be part of all the circumstances as they affect the two parties in the complex relationship of marriage”.

The wife claimed that she was subjected to coercive and controlling behaviour by the husband, which included verbal abuse and threats of physical violence. She also said the agreement was unfair because it did not meet her financial needs for the future.

The husband denied the behaviour and said his wife entered into the agreement freely.

The judge found there had been no evidence of abuse at the time of signing the agreement that would have affected the wife’s state of mind. Indeed, she had actively wanted the agreement. But he did find that the agreement did not provide adequately for the wife’s future financial needs.

In a slightly different context, in TC v MC (another 2022 case) the husband signed a postnuptial agreement many years into the marriage. His wife wanted it as a condition of the marriage continuing. He was suffering from Parkinsons. He was in a low mental state but not vulnerable in a formal legal sense. He signed away many of the financial rights that would have crystalised on divorce – agreeing to receive only 20% of the family assets in the event of divorce. By the time of separation and the financial remedies trial he was so unwell he had to conduct the case through a litigation friend. He had serious needs for housing and care. His life expectancy was limited.

The judge cast aside the postnuptial agreement because it did not meet the husband’s needs. He awarded him half of the family assets – around £2.5 million.

Overall then, coercive and controlling behaviour is capable of being a relevant factor when assessing what weight should be attached to a nuptial agreement. But it must be pleaded carefully as the first case shows. Both cases show that judges are alive to arguments of financial need. They will reduce or even ignore the effect of a pre or postnuptial agreement where fairness requires this.