Following our recent article, Can mediation end the divorce war?, which examined the mediation process in episode 2 of “WAR”, the latest instalment of Sky Atlantic’s series turns its attention to the limits of an “air-tight” prenup.
Episode 3 of Sky Atlantic’s “WAR” sees the battle between Carla and Morgan become personal: nothing (or rather, no-one) is off limits in their struggle to legally outmanoeuvre the other.
Where a prenup is fair, properly drafted, and freely entered into, the court is likely to place significant weight on its terms, treating it as a magnetic factor. However, the court always retains ultimate discretion under section 25 of the Matrimonial Causes Act 1973 and can depart from the terms of any prenup if the facts of the case warrant it.
In this episode, Carla’s team scrambles to find a reason why the prenup should be invalidated. When it quickly becomes apparent that they are not going to be able to argue that Carla gave up a lucrative Hollywood career to support Morgan, her team instead alight on the idea of “AH v BH… that could be the change in circumstances we are looking for!”
AH v BH [2024] EWFC
In 2024, Sital Fontenelle and I acted for the wife in the case of AH v BH [2024] EWFC. On our client’s behalf, we successfully argued that the reality of the parties’ marriage at the time of their separation was materially different from the circumstances contemplated when the prenup was made.
At the time of the prenup, the wife was financially independent, in a professional career with a stable income, and living in her own mortgage-free property.
Fast forward to 2024, at the time of the divorce our client:
- had no property of her own (having sold her flat to help purchase and renovate the family home which the husband said in evidence should be treated as an outright gift to him);
- was primary carer to the parties’ two young children (as would be the case for many years to come);
- had changed career path to prioritise the care of the children, to support the husband in his own business endeavours (he was now a very wealthy man) and to manage the refurbishment of the family home;
- was financially dependent upon the husband; and
- had suffered a decline in her health which she said would have an ongoing impact on her income.
It was clear that marrying the husband and having children had had a significant impact on the wife which the judge, Mr Justice Peel, agreed was a “powerful counterweight” to the prenup. Peel J concluded as a result that it would not be fair to hold the wife to the strict letter of the prenup and her award was topped-up.
In light of this case, Carla’s team argues that Morgan’s paternal bond with his stepson Gabriel is the counterweight to Carla and Morgan’s prenup. That is the material change of circumstances they have been looking for. Indeed, Carla’s lawyer tells her that there isn’t a bigger change of circumstances on the planet than parenthood!
Morgan resists this notion, revealing Carla’s voice note in which she berates him for not caring at all about Gabriel. However, in a dramatic turn Gabriel shows up at the arbitration and Morgan explodes at Carla for not protecting him from the circus of their divorce. He then proceeds to give Gabriel a very fatherly dressing down, telling him to get his life together. And there they have it, Carla’s team have their proof of Morgan’s role in Gabriel’s life.
Review clauses
In general terms, the longer a marriage lasts after a prenup has been entered into, the greater the chance it will be deemed unfair to hold the parties to its terms because of unforeseen changes in their circumstances.
In AH v BH, the inclusion in the prenup of a review clause was cited as clear evidence that the parties themselves had envisaged, at the time of signing, that children might significantly change the landscape of the marriage and therefore necessitate a renegotiation of the terms.
The fact that no review had taken place helped us argue that the agreement had fallen well out of step with the reality of the parties’ lives and was therefore no longer fit for purpose.
Sadly for Morgan, prenups cannot be frozen in time and sometimes, unavoidably, life takes over.
A material change, then what?
This material change leads the arbitrator to “break” the prenup and sees the parties negotiating from a clean slate.
In reality, though less dramatic, a prenup can only be swept aside entirely if doubt is cast on its validity by showing a deficiency in either:
- the free will of one of the parties entering into the agreement (for example where there is a clear abuse of influence of their power over the other party); or
- the level of information the party had when entering into a pre-nuptial agreement.
In the case of Traharne v Limb [2022] EWFC, Jane Keir and I acted for the wife who agued that her ability to freely enter in a postnuptial agreement had been deprived on account of the coercive and controlling behaviour she had suffered in the marriage.
The judge in that case, Mr Justice Cohen, held that coercive and controlling behaviour could be an example of undue pressure, exploitation of a dominant position or relevant conduct that could invalidate a nuptial agreement. In such circumstances, the court would then determine a party’s claims afresh, as though the prenup never existed.
The facts of that case differ very significantly to the circumstances of “WAR”. In my view, the judge in Morgan and Carla’s case would be unlikely to sweep the prenup aside entirely, rather it would continue to carry considerable weight and have a dampening effect on Carla’s claims.
When children become collateral damage
In the episode we see that ultimately, it is Morgan’s genuine love for Gabriel that Carla’s team successfully exploit and use against him.
Whilst it is farfetched to say that a prenup could be invalidated on account of one of the parties’ embracing their new partner’s child as their own, it does make great tv.
Sadly, what isn’t farfetched about this episode is the impact on children of their parents becoming consumed by a desire to get the upper hand in financial settlement negotiations.
Get in touch
At Kingsley Napley we work closely with our clients, as well as other specialists such as mediators and child therapists to help wherever possible to insulate children from parental conflict.
If you need advice or have any questions about separation, prenups or children please contact our Family team.
