22nd December 2016
Judgment in relation to the wife’s application for ancillary relief and provision under schedule 1 Children Act 1989 after the parties entered into prenuptial agreements which designated jurisdiction and regulated property division
Facts:
- The parties were both Swedish. They began cohabiting in 1994 and married in 2000. They had two children, aged 12 and 8.
- The husband’s principal source of income was from active management of his asset portfolio, and he received approximately £300,000 gross pa. He also receives £55,000 gross pa for his businesses. The assets were found to be worth £10,859,533 before deduction of any tax.
- The parties signed 3 prenuptial agreements, each which conferred exclusive jurisdiction on the City Court of Stockholm, and stated that each party retained their separate property on divorce. The wife argued that these should not be upheld on the basis of misrepresentation, claiming that she had been told the agreements would never be upheld.
Held:
- The parties consensually entered into the prenuptial agreements and they were not vitiated by factors such as fraud, misrepresentation or undue pressure. The wife had received separate legal advice on the second of the agreements, and had not been offended by the idea of a prenuptial agreement. Her misrepresentation claim was therefore rejected.
- In relation to a maintenance claim, the validity of the jurisdiction clause is covered by Maintenance Regulation (EC No. 4/2009) Article 4(1) and (2) which provides that the parties must have agreed that Sweden should have jurisdiction, and this agreement is in writing.
- The court’s jurisdiction was therefore confined to dealing with “rights in property arising out of a matrimonial relationship”. The wife’s maintenance claims (lump sum and periodical payments) were stayed to be determined in Sweden.
- Claims for a fair share of the assets of a marriage are rights in property arising out of a matrimonial relationship. The prorogation clause was therefore not caught by the Maintenance Regulation insofar as it deals with sharing or real property claims. Such a claim was subject to any pre-nuptial agreement, however.
- The agreement was determined to be unfair. It would have entitled W to only a half share of the FMH, which represented 5 or 6% of the assts. It would have adversely affected the best interests of the children.
- Although the agreement was unfair, it would be wrong simply to disregard the agreement. The court’s duty is to step in to alleviate the unfairness. Needs may be met by invading the other party’s separate property.
- In this case, approaching the case on a needs basis involved an element of maintenance, which the English court could not deal with maintenance ahead of the Swedish court under the effect of the prorogation clause.
- The wife’s housing needs could not be fairly met from the wife’s net value in the family home, and could not be met without prejudicing the children’s needs. However, providing for the wife would be considered to be maintenance.
- Therefore, the judge’s only option was to address property rights in the strict sense. He could not order that the wife should have more than half the value of the family home.
