When do you consider the validity of the pre-nuptial agreement?

Many of us are hooked on the current Sky and HBO TV series ‘War’ which features an ultra-high net worth couple, of a tech billionaire, Morgan (played by Dominic West in between his Nationwide TV ads) and actress Carla (played by Sienna Miller) going through a divorce, and their feuding legal teams.

WARNING: THE FOLLOWING CONTAINS SPOILERS OF THE SHOW…

Besides one of the law firms using completely inappropriate tactics, of placing a mole to work within the other’s legal team (something I am sure the SRA would strongly disapprove of!), how accurate is the show ‘War?’

Firstly, besides the non-SRA compliant, and quite possibly illegal tactics employed by the husband’s legal team using a mole, my other issue is the highly aggressive approach being used by the solicitors, creating conflict and no doubt increasing costs. Where is the code of conduct and requirement to act in the client’s best interests? The lawyers in this case seem more in conflict than the clients.

But the most recent episode actually featured something that has been before the court this year, the validity of a pre-nuptial agreement.

In ‘War’ the parties sensibly entered into a pre-nuptial agreement (PNA). However at the time of signing Carla was a highly successful actress, and her income was substantially more than Morgan’s, who was in the process of setting up his company. Since the signing of the pre-nup, and during the course of the marriage Carla’s income has reduced, and Morgan’s company grown to be worth billions. Carla’s team are trying to challenge the validity of the pre-nuptial agreement, suggesting a change in circumstances on the basis that Morgan has become the father, in all but biology, to her teenage son, Gabriel.

Morgan and Carla went to arbitration for a ruling on whether the pre-nuptial agreement should be upheld, or whether Morgan’s role in Gabriel’s life should be considered that they had a child together. The Arbitrator ruled on the validity of the pre-nuptial agreement as a preliminary issue, before the lawyers start to negotiate (and no doubt argue), as to how the matrimonial assets should be divided.

In a strange situation of life mirroring art, the issue of when the court consider the validity of a pre-nuptial agreement was considered by Mr Justice Peel in the Royal Courts of Justice, in the case of EC v EC [2026] EWFC 275

In this case the husband was 64, the wife 56, and the parties entered into a pre-nuptial agreement in 2008, being married for around 16 ½ years. The couple had substantial assets that had been accumulated prior to the marriage, including a property portfolio of over 40 residential properties in the UK and USA, businesses, and cash and savings. The total assets were somewhere between £40m – £50m.

The wife sought to challenge the validity of the pre-nuptial agreement on a number of grounds, including a lack of independent legal advice, incomplete financial disclosure, a mistake, that she was placed under undue influence, and upholding the terms would leave her unable to meet her needs.

The question before the court was whether they should rule on the validity of the pre-nuptial agreement as a preliminary issue, as was the case in the ‘War’ TV series, or whether this should be considered as part of the final division of assets.

In paragraph 7 of his Judgement Peel J. said;

“As far as I am aware, the listing of a preliminary issue to consider a PNA is relatively unusual; one example is HJB v WPB (Financial Remedies) (Separation Agreement – Application to Show Cause) [2024] EWFC. It has been suggested to me in a number of cases where there is a direct challenge to the terms of a PNA, but I have hitherto resisted it. Normally, in my view, it is quicker and less expensive to list a final hearing to consider all the s25 factors, including the impact of a PNA. Further, it is generally preferable to hear all the evidence together so as to be able to view the case in the round, evaluating the impact of the various strands of evidence on each other; in short, to consider the case in the round. In the normal way, a FDR or Private FDR can take place before the final hearing.”

It was decided the court could rule on the validity of the pre-nuptial agreement as a preliminary issue, but that usual practice would be to consider this as part of the financial decision, and division of the assets, in part because this would be more time and cost efficient.

The Judge subsequently rejected the wife’s arguments on all grounds, and upheld the validity of the pre-nuptial agreement.

What this means for Morgan and Carla’s case in ‘War’ is that they can ask the Arbitrator or Court to decide the validity of the pre-nuptial agreement separately, and as a preliminary issue, but best, and indeed usual practice would be to consider and decide this as part of the final determination and asset division…. But then if the story was written in that way the case would have been concluded a lot quicker, and the show would have had a lot fewer episodes!

If you need legal advice, without the drama, contact us today.