Pre-Nuptial Agreements

The recent hearing between Ardal Loh Gronager and his wife Wei-Lyn Loh highlights not only the accepted importance of Pre-Nuptial Agreements particularly in relatively short childless marriages but also the importance of honesty with the Court and how conduct can be taken into account.

The Facts

The parties commenced cohabitation in 2015, signed a Pre-Nup in March 2019 and then married in the October before separating in May 2023.  There were no children which added to the importance of the Pre-Nup being a magnetic factor.  In any event both parties accepted the Agreement was valid and largely decisive and so ruled out any claims of compensation and the sharing principle.  The Agreement involved a fixed lump sum by reference to the length of the marriage.  The husband’s entitlement on that basis was £6.4 million together with retained separate property and specified items. 

The Court’s Approval

The Court took account of the fact during the marriage, the husband had in effect received part of that entitlement on account as he had made substantial withdrawals from joint accounts for his own purposes and the wife’s mortgage account then stated these were gifts as it was done with the wife’s consent.  However, the email, evidence upon which he relied were pdfs as he claimed the original emails had been deleted and retaining them was affecting his mental health.  The wife’s representative also pursued the relevance of financial and litigation misconduct under Section 25(2)(g) of the Matrimonial Causes Act 1973.

The husband had additionally set about a campaign of deliberate intimidation by creating a private Instagram account intended to cause distress and retained personal images of his wife.  The husband had also engaged in surveillance of the wife intended to unsettle her during negotiations.

It was not accepted the joint funds became the husband’s separate property after transfer so he was entitled to retain them.  Nor that the withdrawals were authorised.  The wife only discovered them months after the event.  Also the wife was aware of a withdrawal, her consent had been obtained “completely under false pretences”. 

It therefore shows the importance of clearly establishing when drawing on joint monies (joint account) it should be clear if that money is to be retained as a gift or otherwise stands outside the Agreement.  Further, that both parties are aware of the true reason for withdrawal/transfers.

Conduct

An award was made in favour of the wife albeit representing a relatively modest sum in the circumstances but not too small!  The husband’s entitlement under the Agreement was to have been £6.4 million together with retained separate property and items.  The withdrawal of £1.4 million from joint accounts over 3 years and the extraction of approximately £2 million from the wife’s mortgage account and further £1 million were not held to be gifts so part of his retained money.  The pdf evidence of the emails was not accepted and in this case meta data extracted to show that those pdfs had been created more recently and amended.  The total withdrawals being deducted from his entitlement left the sum of approximately £2,745,000 but “deplorable on any view” conduct including making the unauthorised withdrawals or those on a false premise coupled with his attempt to affect her mental health through Instagram and with surveillance sought in the Judge’s view to “undermine the integrity of the entire Court process”.  The email evidence was clearly false.  This was described as a very serious level of litigation misconduct and a £375,000 reduction in the husband’s entitlement was applied.  There will also likely be a substantial costs award towards the wife’s legal costs to follow.  That would usually be how litigation misconduct was treated.

The lessons learned are clearly to present honest evidence, litigate responsibly, not try to undermine the process but also to ensure where substantial money is moved (in the context of the assets available) it is clear how those monies are to be treated.

If you wish to discuss any of these matters in more detail then please contact Lee Marston at Clough & Willis by emailing him at lee.marston@clough-willis.co.uk