No Strictly

It was reported in the Evening Standard on the 22 October 2014 that historian, Lucy Worsley, has a very unusual Pre-Nuptial agreement. Apparently her agreement contains a clause stating that she is not allowed to appear on ‘Strictly Come Dancing’.

The popular historian is presenting a new series on the history of dance with Strictly Judge, Len Goodman.

According to Professor Worsley “it was always a long held dream of mine to be on Strictly … but I was made to sign a pre-nup before I got married that I would never do it. My husband was worried that most celebrities seem to run off with their partners – and he thinks there is quite enough of me on TV already”. Presumably Worsley was joking. However, it has been said that stars who appear on Strictly often waltz off home with their new dancing partner. Sometimes an appearance on the programme preludes the breakdown of the marriage or relationship, as was the case last year with Suzanna Reid.

Margaret Hatwood, a partner in the Anthony Gold family team comments that she certainly has never included a ‘no Strictly’ clause in any of the Pre-Nuptial agreements that she has drafted.

No Adultery

The most unusual clause Margaret has drafted was to include a ‘no adultery’ clause which effectively meant that a comfortably off husband would lose the right to ring fence his family assets. It is not, however, clear what effect such a clause would have under English law.

Across the pond, such clauses are fairly common. Apparently when Catherine Zeta-Jones and Michael Douglas got married in 2000, Zeta-Jones was concerned that Douglas had cheated on his first wife repeatedly, including with his best friend’s wife. Therefore, in the event of divorce, Zeta-Jones will receive a substantial payment for every year of marriage. She had asked for $5m per annum but accepted a lower figure in exchange for a lump sum of cash up front and a $5m ‘straying’ clause if Douglas cheated on her. In return, Douglas repeatedly had a confidentiality clause from Zeta-Jones barring her from ever revealing personal details of their marriage. Douglas’ desire to have a Pre-Nuptial agreement was understandable. Apparently after his first marriage to Diandra Luker ended the actor paid out $45m to her.

In the US the Chicago-Sun Times found some clauses in Pre-Nuptial agreements including:-

  • The right to perform random drug tests. Financial penalties were incurred if the results were positive
  • A claim on frequent flyer miles should the spouse be unfaithful.

Sunset Clauses

More sensibly, it is not unusual for Pre-Nuptial agreements in England and indeed the US to contain a ‘sunset’ clause that brings the Pre-Nuptial agreement to an end after a medium length or long marriage. This happened in the case of a couple called Jack and Jane Welch. Jack was a wealthy US CEOs. The Pre-Nuptial agreement contained a ‘sunset’ clause that ended the pre nup after 10 years of marriage. After 10 years, Jane left her husband and received a divorce settlement reputedly of $150m.

‘Sunset’ clauses are not unusual in England.

What is the Status of a Pre-Nuptial Agreement in England and Wales?

When the Matrimonial Clauses Act (1973) which governs divorce and financial settlements was first enacted, Pre-Nuptial agreements were not regarded as binding as the traditional approach was that such agreements could not be used to oust the jurisdiction of the Court. However, in recent years, the Court’s attitude to such agreements which can either be Pre-Nuptial or Post-Nuptial has changed and the courts now give much greater weight to the provision of agreements made.

Under the current law, however, the courts still have a discretion as to whether the terms of such agreements are followed. That is at odds with the treatment of such agreements in many parts of the world.

Following the landmark decision in the case of Radmacher –v- Granatino 2010 UK SC 42, the Courts in England have upheld Pre-Nuptial agreements which had been freely entered into by the parties unless it would not be fair to hold the parties to their agreement. In the Radmacher case, the husband was French and the wife German. The wife came from a wealthy family and had significant assets. The parties entered into a Pre-Nuptial agreement in 1998 in Germany. The husband did not obtain independent legal advice. The couple had two children. During the marriage, the husband left his well paid banking job and returned to academic study. At first instance, the Judge held that the agreement was not binding; nonetheless, the agreement was given a considerable amount of weight by the court. The wife did not accept the modest award and appealed. The case ended in the Supreme Court. The agreement was largely upheld and the husband exited the marriage where the wife had assets of £100m with just £5.5m, £2.5 of which had to be repaid when his years of parenting were over. Some of the factors which the Supreme Court identified as being crucial as to whether or not there was a binding agreement were:-

  1. Were there any factors such as duress, fraud or misrepresentation were present
  2. Each party’s emotional state and what pressures they were under to agree and the circumstances of the parties at the time of the agreement, e.g. age and maturity
  3. If the terms of the agreement were unfair from the start, this would reduce its weight
  4. Foreign elements and whether the parties intended their agreement to be effective

Subsequently the case of Z –v- Z 2011 EWHC 2878 concerned a French couple. They married in 1994 and entered into an agreement as to how their property should be held. Such an agreement is quite normal amongst French couples. The wife was held to the agreement. However, as the question of maintenance was not mentioned in the agreement, the wife was able to claim maintenance. However, the wife’s maintenance award was limited to reasonable requirements rather than a sharing award.

In the case of AH –v- PH (Scandinavian marriage settlement) 2013 EWHC 3878 (where Anthony Gold represented the successful wife) was a case involving a Scandinavian agreement with limited provision for the wife in the event of divorce. The wife had received no advice as to what she might be giving up under English law, even though the husband had long since formed an intention to live in England at the time the agreement was signed. The original agreement provided that the wife should receive 10m krona to satisfy her housing needs. However, this had been worked out on the basis of her housing needs in Scandinavia whereas the wife’s housing needs in London were vastly different. The Judge decided to invade the husband’s inherited capital to deal with those changed housing needs.

Recently the Law Commission who review law and recommend reform have recommended that legislation be enacted to introduce ‘qualifying nuptial agreements’. These would be enforceable contracts, not subject to scrutiny by the Courts which would enable married Couples to make contractual arrangements about the financial consequences of divorce or dissolution of marriage. In order for an agreement to be qualifying, certain procedural safeguards would have to be met. Qualifying agreements, however, could not be used to contract out of financial needs. See matrimonial property needs and agreements: the future of financial orders on divorce and dissolution summary