Before You Sign: The ‘Magnetic’ Weight of Agreements in Divorce
In FO v PN [2025] EWFC 327 (B) a wife successfully argued against the enforcement of a prenuptial agreement, relying on a Deed of Revocation signed just months after the marriage collapsed.
Background
The parties met in 2008 and married in June 2012, just weeks after signing a Prenuptial agreement (“the Agreement”) on 22 May. At the time of marriage, the husband was 70 years old and entered with considerable wealth; the wife was 43 with relatively little assets. The parties had two children, with the wife assuming primary caregiving responsibilities throughout the marriage.
The Agreement stipulated that most assets would be treated as "separate property" and excluded from division upon divorce. Only a limited category of "marital property", including a single property, would be divided equally. Had this division occurred, the wife would have received an estimated £2,500,000 in the event of divorce.
Between 2020 and 2022, the parties attended couple’s therapy. In September 2021, the wife discovered that the property listed for equal division was in fact 99% owned by the husband’s daughter from a previous relationship.
Deeply unsettled, both parties obtained legal advice and, on 28 April 2022, executed a Deed of Revocation (“the Deed”), formally revoking the Agreement and agreeing to equal division of assets. The Deed was properly executed, with advice from family lawyers who certified its fairness and suitability. Despite efforts to repair the relationship, the marriage continued to unravel. The court assessed that separation became definitive by September 2022, and on 4 February 2023, the wife issued divorce proceedings. The matter proceeded to a final hearing in the Family Court after attempts to reach a settlement failed.
The magnetic factor
In financial remedy proceedings under Section 25 of the Matrimonial Causes Act 1973, the court is required to consider a range of factors. However, in this case, the Deed was treated as the “magnetic factor” and ultimately upheld by the court.
The court valued the total assets at £19,952,582, and under the Deed, the wife was entitled to an equal share of £9,976,291. The husband disputed this, proposing a significantly lower figure of £6,384,000. He challenged the Deed on three grounds: that it had been signed due to manipulation and misrepresentation by the wife, that it was signed under undue pressure, and that the marriage ended so soon after the deed was signed that fairness required the court to disregard it and revert to the original Agreement.
Earlier this year in Helliwell v Entwistle, the Court of Appeal endorsed a two-stage test: first, whether any vitiating factors are present, such as duress, fraud or misrepresentation; second, whether it would be fair in all the circumstances to hold the parties to the agreement.
HHJ Edward Hess examined these factors and discussed the common scenario of a wealthy spouse requiring a prenuptial agreement before marriage, acknowledging that such situations involve pressure. He quoted Moor J in MN v AN, who said this is commonplace and not a vitiating factor on its own. The judge highlighted that even if the husband signed the Deed in the hope of saving the marriage, that hope did not invalidate his decision.
What did the Court decide?
Ultimately, the court found that the wife had acted in good faith. The husband’s proposal to reduce the wife’s entitlement to £6,384,000 was firmly rejected, and the equal division of assets was upheld, with the wife receiving £9,976,291.
The husband’s claim that the wife had misrepresented her intentions and “flicked a switch” after signing the Deed was dismissed. The judge criticised the husband for pursuing this line of argument, stating it was “never a strong one and that it was unreasonable for the husband to pursue it.” The court further remarked that it was “very unfortunate the husband alleged deliberate, if not fraudulent misrepresentation… this caused not only understandable distress to the wife but also necessitated a high level of work to rebut the allegation, which she did in the end very powerfully.”
In recognition of the unnecessary burden placed on the wife, the court ordered the husband to pay £100,000 towards her legal costs. Both parties incurred substantial legal expenses, with costs totalling £459,135 for the wife and £337,796 for the husband.
Why is this case important?
FO v PN reinforces the importance of contractual autonomy. This case is a timely reminder that “a difficult choice is still a choice”. If you are considering a pre or post nuptial agreement, varying an agreement or entering into a deed of revocation and need help drafting one to protect your wealth, or simply want to explore your options, we are here to guide you through every step - because informed decisions can safeguard your future.
