HHJ Hess.

Financial remedies case involving postnuptial agreement, in which H had, in the face of a foreshortened life expectancy caused by Parkinson’s disease, voluntarily relinquished his clear entitlement both to sharing and to a needs-based award.

After H visited a sex worker, W agreed to continue the marriage if the parties entered into a postnup, the terms of which would give her approx. 80% of the assets. H was advised in the strongest terms not to enter into the agreement but said he wished to do so, noting that ‘given my Parkinson’s it makes no sense for me to have any assets in the long term’ and that he would rely on state support. The agreement was signed and the marriage continued until 2020. W then issued a notice to show cause why H should not be held to the terms of the agreement. By this time, H lacked litigation capacity and was represented by a litigation friend.

Helpful summary of post-Radmacher case law at [14]. Court found that the postnup had ‘some features which place it firmly in the category of agreement to which the court should attach weight’ – disclosure, legal advice, clear to understand by intelligent parties (H had worked in finance). H’s argument that W had blackmailed him into the agreement was not sustainable on the evidence. Nevertheless, at the time that H entered into the agreement he wrote about his fear of dying alone and that he had nothing left to offer. He believed wrongly that his wife was having an affair and he was experiencing some additional medical issues. He was vulnerable and the wife took advantage of that, not ‘in “formal legal terms”, [but] rather considering “all the circumstances as they affect each of two human beings in complex relationship of marriage”’.

Court also considered how court should approach H’s wish to have no money to meet the needs arising from his medical condition and whether it was the same as a person (such as Mr Granatino) who gives away the possibility of sharing in premarital assets to secure the commencement of a marriage. He rejects ‘as unfair any suggestion that the agreement’s invitation to ignore medical condition should be treated as overriding the requirement for the court to make an assessment of need’. Moreover, to enforce the agreement would leave H in a predicament of real need. He needed accommodation that was familiar to him, and at-home care for the remainder of his life as he had feared living in a care home. Together, these placed his needs above half of the assets.

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