DDJ Nahal-Macdonald.

Preliminary issues hearing in relation to interpretation of a clause in a prenuptial agreement.

Parties married 2010 and separated in 2023. W is a barrister aged 58 and H is a solicitor advocate aged 69. The petition was September 2023. They entered into a PNA which, inter alia, stated at para 18 that ‘all other income and assets acquired after 5 June 2010 and not arising from the conversion of any aforementioned assets should be shared equally’. The issue was whether three properties held by H were ‘aforementioned’ or had been converted, and thus were matrimonial, or conversely whether they were excluded by the PNA. Each had been bought during the marriage.

H argued that ‘aforementioned’ meant those properties specifically referred to earlier in the agreement and that the properties were excluded in this way or by conversion (for example, one being bought from PNA-excluded pension drawdown), and that W’s needs would in any event be met notwithstanding their exclusion. W argued that one of these properties was purchased as a holiday/weekend home for the family, i.e. as a ‘second family home’, and should not be ringfenced, or alternatively that even if it was held to be non-matrimonial needs justified its inclusion.

The parties did not seek independent legal advice and stated within the agreement that they had chosen not to do so, and understood the agreement, and entered free of duress. Despite a review clause, no reviews had taken place. W denied that the statement on her chambers’ website that she practised in matrimonial finance was accurate. H argued that ‘material’ disclosure, which is what was required by Radmacher, had taken place. W disputed her knowledge of the value of some assets.

Held:

Language of PNA was plain – it excluded certain assets including pensions and converted assets – conversion had its ordinary meaning. While the parties at the time did not have specialist skill in the area of matrimonial finances, they were lawyers and it was their choice not to seek advice. The risk of that would have been abundantly clear to them.

Two of the properties held by H were converted and thus excluded. The third property was not matrimonialised by parties spending time there as a ‘second family home’. It too was a converted asset and spending time there did not change this – otherwise H could claim against W’s flat which had been the FMH. W had chosen not to build a pension over 40 years of adulthood, and treated her flat as akin to a pension. She was free to do this. W was free to increase her income. The PNA should be upheld and there should be an order putting the agreement into effect.