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Nuptual bliss

Last week an Isle of Man divorce case went to the final appeal court for such cases, the Privy Council. The case concerns the divorce of an American couple, Mr and Mrs MacLeod. The marriage lasted for some 10 years, although apparently it was volatile and ended after the wife had an affair in 2002 and the husband divorced her on the grounds of adultery in 2004. Whilst they lived in the Isle of Man for most of the marriage, at the time of the marriage in 1994 they lived in Florida. They entered into a prenuptial agreement which was apparently amended twice in later years. They had five sons together.

The brief facts are that Mr MacLeod wanted the award to his former wife a total sum of £1.89 million as specified in the prenuptial agreement. In addition he offered some money is to be held in trust to provide a home for the children, but which sum would go back to him when the youngest child became 18. In contrast Mrs MacLeod wanted in excess of £5,000,000 being 30% of the pre-marriage wealth and 50% of the post-marriage wealth. She also alleged that her husband had not properly disclosed his assets to her, that she had been pressurised into signing the agreement, and that she had not received proper legal advice. Although those points of challenge were not accepted by the judge on the facts, the judge did not strictly enforce the prenuptial agreement, but gave her a greater award in respect of housing.

Obviously if, as with any contractual agreement, there were circumstances surrounding the signing of that agreement that made it wrong to enforce it, that would be one thing. However the judge found that there were not. Notwithstanding that he increased the amount the wife received for housing. It is that order which is essentially under appeal.

What the husband is pressing for is enforcement of the prenuptial agreement like any other contract. It is now nearly 80 years since the House of Lords determined that prenuptial agreements were not enforceable on grounds of public policy. The world is a very different place now than it was then. In particular given that: there are "no fault" divorces, so it is difficult to stop your spouse divorcing you; conduct is not generally

Michael J. Booth QC