Friday Law Report: Antenuptial agreement was unenforceable

9 July 1999

N v N

Family Division (Mr Justice Wall) 1 July 1999

WHILST AN Orthodox Jewish wife, following the obtaining of a decree absolute, could neither enforce provisions in an antenuptial agreement requiring the parties to submit to mediation or arbitration by the Beth Din in the event of a marital dispute, nor enforce the husband's agreement, made by way of recital to a contact order, to expedite the obtaining of a Jewish bill of divorce, the court had a discretion to refuse to hear the husband's contact application until he had complied with his agreement.

The court dismissed the wife's summons requiring the husband to co-operate in the obtaining of a Jewish bill of divorce, or Get.

The husband and wife were Orthodox Jews. They had entered into an antenuptial agreement, which provided that in the event of any matrimonial dispute the parties would attend the London Beth Din for mediation, and that if any dispute were not so resolved, they would refer the dispute to the London Beth Din for arbitration.

The wife petitioned for divorce under the provisions of s 1(2)(b) of the Matrimonial Causes Act 1973 and obtained a decree absolute. A consent order was made whereby each party's claim against the other for ancillary relief was dismissed.

The husband had taken no steps to apply to the Beth Din for a Get, and the wife issued a summons seeking that the husband should promptly take and co-operate in the necessary steps to progress the obtaining of a Get; that he should attend the London Beth Din for consideration of the grant of a Get; and that he should comply with all procedural requirements and rules of the London Beth Din.

The husband asserted that the court had no jurisdiction to grant the relief sought, and applied to strike out the summons in limine. The wife asserted that the husband was in breach of his covenants under the agreement, and further that he had failed to comply with the terms of an order of the court made after a conciliation appointment in relation to his application for contact with the child of the marriage, to which his agreement that he would progress the obtaining of the Get expeditiously was a recital.

Mr Justice Wall said that the attitude of the English courts to antenuptial agreements, as opposed to antenuptial settlements, had always been that they were not enforceable. An agreement made prior to marriage which contemplated the steps which the parties would take in the event of divorce or separation was perceived as being contrary to public policy because it undermined the concept of marriage as a lifelong union. The agreement between the parties in the present case could not, therefore, be specifically enforced against the husband.

Even if the agreement were divided up and the individual clauses looked at separately, the fundamental proposition that each was part of an agreement entered into before marriage to regulate the parties' affairs in the event of a divorce could not be avoided, and the public policy argument, therefore, continued to apply.

Further, there was no power in any of the statutory provisions governing the present case to compel the parties to implement an arbitration clause, nor was there any statutory power currently in force to compel them to attend mediation meetings. Moreover, the agreement recorded in the contact order was not an undertaking, but a recital, and could not be enforced by committal, nor was it specifically enforceable.

It was well established, however, that the court had a discretion not to hear a party who was in contempt of court, and similar considerations could apply where, as in the present case, a husband had agreed in the face of the court to take a particular course of action and his agreement to do so was recorded in the order of the court.

Whilst there was no jurisdiction to require the husband to co-operate in obtaining a Get, it would be open to the judge hearing his application for contact to decline to do so unless and until he honoured the agreement recorded in the contact order. The judge would, of course, have to treat the welfare of the child as paramount.