Ipekci v. McConnell 2019 EWFC 19
Facts:
- The parties met in New York in 2003. They began
cohabitating in 2005 and married on 26 November 2005. They separated in 2016.
They had two children aged 11 and 7 years-old. - The Wife (‘W’) was the heiress of a large
cosmetics company and beneficiary of trusts with an overall value of at least
$65m. She did not work. By contrast, at the time of the hearing the Husband’s
(‘H’) liabilities amounted to just over £100,000. He owned a 50% interest in
his mother’s property in Turkey worth just under £50,000. He earned £35,000
gross. p.a. as a Head Concierge for a London hotel. The family home was a
relatively modest property in Barnes worth £1.675m in W’s name. There were two
other properties in Hanwell and New York, also in W’s name. - Before the marriage, a pre-nuptial agreement was
drafted by W’s lawyer in New York. The proposed agreement deprived H of any
financial claim save for an equal share of any increase in value in the Barnes,
Hanwell and New York properties. Further, the agreement provided that:- It was deemed to have been made under the laws
of the State of New York;
- Its validity, effect and construction should be
determined in accordance with the laws of the State of New York regardless of
where either party resided or was domiciled at the time of death, divorce or
separation.
- The parties wished any proceedings relating to
the marriage to be determined in accordance with the laws of the State of New
York and
- The parties submitted to the exclusive
jurisdiction of the courts of that State.
- It was deemed to have been made under the laws
- W recommended an English solicitor to H to give
him independent advice on the terms of the proposed agreement. The solicitor in
question had acted for W in her divorce with her previous husband and was not
qualified to advise on New York state law relating to the enforceability of
pre-nuptial agreements. H met W’s former solicitor for the first time 23 days
before the marriage and signed the pre-nuptial agreement 15 days before the
marriage despite being advised that the agreement heavily favoured W’s
interests. - By the time of separation there had been no
increase in the value of the properties and thus the agreement gave H nothing.
The main question for the court to determine was whether H should be held to
the pre-nuptial agreement, and if not, what orders should be made in his
favour. - A single joint expert was instructed to comment
on the validity of the pre-nuptial agreement under New York law. The expert
evidence was that the agreement suffered from a fatal defect under New York law
because it was not accompanied by a duly authenticated certificate that it
conformed with the local law in its attestation. The expert concluded that the
agreement would have been given “minimal weight, if any” in New York.
Held:
Mostyn J.
- Lord Phillips in Radmacher v. Granatino [2010] UKSC 42 at [75] enunciated the guiding principle
where a prenuptial agreement exists as follows:
“The court should give effect to a nuptial
agreement that is freely entered into by each party with a full appreciation of
its implications unless in the circumstances prevailing it would not be fair to
hold the parties to their agreement”.
He continued at [81]:
"Of
the three strands identified in White v White and Miller v Miller, it is the
first two, needs and compensation, which can most readily render it unfair to
hold the parties to an ante-nuptial agreement. The parties are unlikely to have
intended that their ante-nuptial agreement should result, in the event of the
marriage breaking up, in one partner being left in a predicament of real need,
while the other enjoys a sufficiency or more, and such a result is likely to
render it unfair to hold the parties to their agreement."
- On the facts of this case, it would be wholly
unfair to hold H to the pre-nuptial agreement because:- The evidence from the single joint expert was
that the agreement suffered from a fatal defect under New York and would be
given “no legal force save for the minor impact of its historical voice” in New
York.
- If the parties have made their bed in New York
they must lie in it. It would be wholly unjust to attribute weight to this
agreement when under the law that the parties elected it would be afforded no
weight.
- H cannot be said to have had a full appreciation
of the implications of the agreement when he had no legal advice at all about
the impact of New York law. Further, the fact that the solicitor had acted for
W in the past made this a clear situation of apparent bias.
- The agreement did not meet any needs of H.
- In those circumstances, no weight was attributed
to the prenuptial agreement.
- The evidence from the single joint expert was
- H’s claim fell to be decided solely by reference
to the principle of needs as all of the assets are or have their origin in
non-matrimonial property. - Having considered all the relevant
circumstances, the court awarded H a housing fund of £750,000 subject to a
charge back in the sum of £375,000 in W’s favour on H’s death. In addition, he
was awarded a lump sum of £186,500 to meet his capital needs and an income fund
of £445,500.