N v N (Jurisdiction: Pre Nuptial Agreement) sub nom N v N (Divorce: Ante-Nuptial Agreement)
| Jurisdiction | England & Wales |
| Judgment Date | 1999 |
| Date | 1999 |
| Court | Family Division |
Divorce – Ante-nuptial agreement – Orthodox Jews – Agreement providing any marital dispute be referred for mediation or arbitration by Beth Din – Wife obtaining decree absolute – Husband applying for contact to child and agreeing under consent order to obtain a ‘Get’ or bill of divorce under Jewish law – Husband failing to take steps to obtain Get – Wife seeking specific performance of ante-nuptial agreement – Whether agreement enforceable.
The husband and wife, who were Orthodox Jews, entered into an ante-nuptial agreement before their marriage in 1996. Clause 10 of that agreement provided that in the event of any matrimonial dispute they would attend the Court of the Chief Rabbi, the London Beth Din, and that any such dispute, if unresolved would, under cl 11, be referred to and finally resolved by arbitration by the London Beth Din. The parties subsequently separated and the wife petitioned for divorce. The decree nisi was pronounced in May 1998 and made absolute in June, and by consent each party’s claim for ancillary relief was dismissed. There remained an outstanding application for contact in respect of their two-year-old son, who lived with the wife. However, whilst under English law the parties were no longer husband and wife, the husband’s failure to apply to the Beth Din for a ‘Get’ (a bill of divorce in Jewish law) to be delivered to the wife meant that under Jewish law they remained married. Accordingly, the wife issued a summons seeking specific performance of the ante-nuptial agreement and in particular the obtaining of a Get. The wife contended that not only was the husband in breach of his covenants under cll 10 and 11, but that he was also in breach of the terms of a consent order, arising from a conciliation appointment in relation to the husband’s contact application, whereby he agreed to progress the obtaining of the Get expeditiously. The husband asserted that the court had no jurisdiction to grant the relief sought, and applied to strike out the summons in limine.
Held – (1) The attitude of the English courts to ante-nuptial agreements, being arrangements made prior to marriage and contemplating the steps the parties would take in the event of divorce or separation and as such perceived as contrary to public policy for undermining the concept of marriage as a life-long union, had always been that they were not enforceable. Moreover, that public policy argument applied even if the individual clauses were examined separately as each was part of an agreement to regulate affairs upon divorce. However, whilst unenforceable, ante-nuptial agreements could have evidential weight when the terms of the agreement were relevant to an issue
before the court in subsequent proceedings for divorce. The existence of the agreement, and the weight to be given to it, were both factors to be taken into account in the overall balance when the court was deciding, on the facts of the individual case, whether or not to exercise its discretion under s 25 of the Matrimonial Causes Act 1973 to make orders for financial provision under ss 23 and 24. Applying those principles to the facts to the instant case it was apparent that neither the agreement, nor the individual clauses, could be specifically enforced against the husband. Furthermore, cl 11 was clearly an agreement to arbitrate and there was no power in any of the statutory provisions governing the present case to appoint an arbitrator or compel the parties to implement it, and the same argument applied to cl 10.
(2) It was well-established 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 a husband to co-operate in the obtaining of a Get, it would be open to a judge hearing a husband’s application for contact to decline do so unless and until he had honoured the agreement set out in the order of the court, provided of course it did not prejudice a child’s welfare, which remained the paramount consideration. On the facts, there was an order for contact already in force and the father sought to alter the status quo and obtain additional relief from the court. In the circumstances of the present case, if the judge hearing the outstanding contact application thought it appropriate, he could decline to take the action requested. Accordingly, whilst there were steps the court could take to demonstrate its disapproval of a refusal by a Jewish spouse to co-operate in the delivery and receipt of a Get, it did not have the jurisdiction to grant the relief sought by the wife, and it followed that the wife’s summons would be dismissed.
Per curiam. In order to enforce an ante-nuptial agreement wherein a husband has agreed to obtain a Get but fails to do so, it would be within the proper exercise of the court’s jurisdiction: (a) to allow a wife petitioner to delay making the decree nisi absolute, and then decline to give leave for the decree nisi to be made absolute on the husband’s application until such time as he has honoured the agreement; and (b) on the husband’s application to dismiss a wife’s claims for ancillary relief, to decline to exercise its jurisdiction until the husband had complied with the agreement. Furthermore, where a case is proceeding on the basis of two years’ separation, s 10 of the 1973 Act will apply if a Jewish wife gave her consent to a divorce on the basis that the husband would obtain a Get, and he fails to do so, and the refusal to initiate the Get procedure might result in grave ‘financial or other hardship’ under s 5 of the Act.
Cases referred to in judgmentBaker v Baker (No 2) [1997] 2 FCR 249, CA.
Berkovits v Grinberg (A-G intervening) [1996] 1 FCR 587, [1995] Fam 142, [1995] 2 All ER 681, [1995] 2 WLR 553.
Brett v Brett [1969] 1 All ER 1007, [1969] 1 WLR 487, CA.
CB and JB (minors) (care proceedings: case conduct), Re[1998] 2 FCR 313.
D (minors) (conciliation: disclosure of information), Re[1993] 1 FCR 877, [1993] Fam 231, [1993] 2 All ER 693, [1993] 2 WLR 721, CA.
Des Salles d’Epinoix v Des Salles d’Epinoix [1967] 2 All ER 539, [1967] 1 WLR 553, CA.
Edgar v Edgar [1980] 3 All ER 887, [1980] 1 WLR 1410, CA.
F v F (ancillary relief: substantial assets) [1996] 2 FCR 397.
Frey v Frey (22 February 1984, unreported), Aust Fam Ct; rvsd (12 November 1984, unreported), Aust Full Ct.
Hadkinson v Hadkinson [1952] P 285, [1952] 2 All ER 567, CA.
Hyman v Hyman [1929] AC 601, [1929] All ER Rep 345, HL.
Joseph v Joseph [1953] 1 WLR 1182, [1953] 2 All ER 710, CA.
O (a minor) (contact: indirect contact), Re[1996] 1 FCR 317, CA.
Richards v Richards [1984] AC 174, [1983] 2 All ER 807, [1983] 2 WLR 173, HL.
S v S (matrimonial proceedings: appropriate forum) [1997] 3 FCR 272, [1997] 1 WLR 1200.
W v W (decree absolute) [1998] 2 FCR 304.
Originating summonsBy a summons dated 25 March 1999 the wife sought specific performance of an ante-nuptial agreement entered into with her husband that he would promptly take and properly co-operate in the necessary steps to progress the obtaining of a Get (a bill of divorce in Jewish law); that he would attend the London Beth Din for consideration of the grant of a Get on a date and time to be fixed by the London Beth Din; and that he complied with procedural requirements and rules of the London Beth Din, following the parties’ divorce and the husband’s subsequent refusal to obtain a Get. The case was heard and judgment was given in chambers. The case is reported with the permission of Wall J. The facts are set out in the judgment.
Jonathan Cohen QC (instructed by Levison Meltzer Piggott) for the wife.
David Burles (instructed by Roberts McCracken) for the husband.
Cur adv vult
1 July 1999. The following judgment was handed down.
WALL J.This case raises issues of considerable importance to Jewish spouses who are involved in divorce proceedings. For that reason, although the hearing before me was in chambers, and this judgment is also being handed down in chambers, I propose, subject to argument, to give leave for the judgment to be reported under initials. I will, accordingly, refer to the parties as ‘the husband’ and ‘the wife’ respectively, and to their one child by initials.
Nothing must be published which identifies the parties or the child of the family by name or location.
The essential factsIn this case the husband is 26 and the wife 22. They were married on 10 March 1996 and separated in October l997. They have one child, a boy, AS, born on 19 February 1997, and so aged two years and five months.
The wife petitioned for divorce in the Principal Registry on 20 January 1998 under the provisions of s 1(2)(b) of the Matrimonial Causes Act 1973. The petition was undefended and a decree nisi of divorce was pronounced on 7 May 1998. That decree was made absolute on 22 June 1998. Thus in English law, the parties are no longer husband and wife.
On 1 December 1998 an order was made by consent in the divorce proceedings whereby each party’s claim against the other for ancillary relief was dismissed. Accordingly, neither has any financial claim against the other.
The husband currently pays £15 per week for AS, who lives with his mother. There is an outstanding issue in relation to the father’s contact with AS, and aspects of his religious upbringing are in dispute between the parties.
The difficulty in the case arises because both the husband and the wife are Orthodox Jews. The wife is a member of the Orthodox Ashkenzi Community, and the husband is a member of the Sephardi Orthodox Community, and what they have called their ‘Jewish Marriage’ remains in being.
The particular cause of contention is that the husband has taken no steps to apply to the Beth Din for a ‘Get’ (a bill of divorce in Jewish law) to be delivered to the...
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