In BN v MA [2013] EWHC 4250 (Fam) Mostyn J observed:

‘[24] … In Granatino v Radmacher the Supreme Court analysed very closely the nature of nuptial agreements. They pointed out that nuptial agreements come in numerous shapes and forms and can be entered into at any point before, during or after a marriage …

[26] The Supreme Court has modified the test for the treatment of these nuptial agreements, as expressed in Edgar and Xydhias and, indeed, in MacLeod, so as to provide one single test applicable to all nuptial agreements, which is this, “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”. That now is the test to be applied in every case where a nuptial agreement falls for consideration.’

Pursuant to the overriding objective, the fact that there is a nuptial agreement (of whatever kind) requires the case to be managed in an appropriate way. For example in Crossley v Crossley [2008] 1 FLR 1467, where the parties had entered a prenuptial agreement which provided that neither party would make an application against the other for financial provision on divorce, Bennett J directed Forms E to be completed without supporting documents and made no provision for questionnaires. This decision was upheld on appeal. Likewise in S v S (Ancillary Relief) [2009] 1 FLR 254, where an agreement was said to have been reached at a round-table meeting after separation, after Forms E and questionnaires had been directed, Eleanor King J (as she then was) declined to order further disclosure (save as specifically provided) or responses to questionnaires, on the basis the agreement was a matter of such ‘magnetic importance’ (a phrase believed to have first been coined in Crossley by Thorpe LJ at [15]) it must necessarily dominate the discretionary process.

An agreement does, however, always have to be considered in the context of all the circumstances of the case. In HJB v WPB (Financial Remedies) (Separation Agreement – Application to Show Cause) [2024] EWFC 187 (10 July 2024) Her Honour Judge Vincent (sitting as a deputy High Court judge) was concerned with a separation agreement entered into by the parties. The wife subsequently indicated that its terms should not be incorporated into a consent order and the husband issued a notice to show cause as to why the parties should not be held to its terms. At the First Appointment the court directed a hearing as a preliminary issue of the question (at [15]) ‘whether the parties should be held to the terms of the separation agreement … and those terms incorporated into a final order of the court’. At [20] it was said the preliminary issue was framed as a question that ‘could potentially be determinative of the proceedings’.

However it was then said at [23] one of the two reasons why it was subsequently concluded that the proceedings could not be fully resolved at a preliminary stage was that:

‘the ultimate question for the Court is what the financial arrangements should be for the parties upon divorce. If the settlement agreement is held to be binding on the parties, that will give rise to a presumption that the ultimate outcome should be in line with the terms of the agreement, but the Court must still consider all the circumstances, having regard to all the section 25 factors.’

Her Honour Judge Vincent concluded that the agreement should stand. She thereafter stated at [124]:

‘The question of the extent to which any of the other section 25 factors may yet have an impact upon the final outcome in this case does remain live between the parties, as does the question of the ongoing assessment of needs. However, the agreement is, in the words of Mr. Justice Peel [in WC v HC (Financial Remedies Agreements) (Rev 1) [2022] 2 FLR 1110] “presumptively dipositive.” In the circumstances, the extent of the Court’s enquiry will be narrower than if the wife had succeeded in arguing that the agreement should be disregarded completely, or given little weight.’

It is this reference by the judge to the other section 25 factors at [23] and [124] that is key. This is because even if the normal form of application made by the party seeking to uphold the agreement is one requiring the resiling party ‘to show cause’ why an order reflecting, or in the terms of, the previous agreement should not be made (the so-called Dean-summons),1 the court must be careful not to consider the agreement as a preliminary issue in isolation, without any simultaneous or subsequent consideration of the wider s 25 factors. This is what occurred in Smith v Smith [2000] 3 FCR 374, **which led to an order being made that held the wife to an agreement which failed to meet her basic needs. As Thorpe LJ said at p.381f:

‘My greatest criticism of this judgment is one that is perhaps not directed against the judge himself. I believe that the omissions in the judgment are probably the product of the way the case was presented and argued. It seems as if it was almost presented to the judge as a preliminary issue for him to decide whether the existence of the contract in September 1996 disentitled the wife, as a matter of either law or discretion, from an investigation of her statutory claims. That was simply not the judicial function. … when a wife brings to the court her statutory claims for determination the existence of an earlier contract is only one of the considerations to which the judge must give weight …’

In S v S (Ancillary Relief) Eleanor King J said at [23 (ii)] that she:

‘[did] not take Smith v Smith to be saying that the court must always hear a case as a full blown ancillary relief hearing where there is an alleged agreement, but rather as a trenchant reminder that an agreement forms part of all the circumstances of a case and that, even if such an agreement be found to be of magnetic importance, the court should only ever consider such an agreement against the backdrop of all the s 25 factors.’

In summary therefore (as set out in S v S at [23]):

1. the existence of a concluded agreement is a matter of great weight; but
2. the court when considering whether there is an agreement and its effect if there is, does so against the backdrop of section 25;
3. there is no reason why in an appropriate case the status of an alleged agreement should not be dealt with as a notice to show cause determined against the backdrop of a consideration of the section 25 factors;
4. such an approach is fundamentally different from one where the court embarks on a consideration of evidence as to the existence of an agreement as a preliminary issue, in a vacuum, with no consideration of the surrounding circumstances or section 25 factors;
5. there may be circumstances in which there is a factor of such magnetic importance that it must necessarily dominate the discretionary process. In such a case the vehicle of a ‘notice to show cause’ can appropriately be regarded as the proportionate and just route by which to determine the extent to which that factor should be determinative of the action; and
6. an application for a notice to show cause is therefore an appropriate means by which an aggrieved party can bring the matter before the court.

It is entirely appropriate for the factual question of either the existence of an agreement (if in dispute), or (as in HJB v WPB) whether one party ought to be entitled to resile therefrom on the so-called Edgar2 grounds or otherwise, to be heard as a preliminary issue. However, beware any suggestion that the court should embark on a consideration of the status of any such agreement (i.e. whether the parties ought to be held to it/a final order made in its terms) as a preliminary issue, with no consideration of the surrounding circumstances or s 25 factors. HJB v WPB serves as a timely reminder that to frame the question in this way – and for it potentially to be determinative of the proceedings – would be to hear the case in a vacuum and fail to consider all the circumstances of the case and the statutory criteria.