Vitiating factors: duress and undue pressure in nuptial agreements

Signing a prenup under duress or undue pressure

For a nuptial agreement to be given effect by the court, both parties must have entered into the agreement freely. Where a party has been subjected to improper pressure, to the extent that they were unable to enter into an agreement freely, the agreement may be set aside. 

What is the difference between duress and undue pressure?

The key difference between duress and undue pressure is that the former developed as a principle of common law, whereas the latter developed as a principle of equity.

• Originally, duress referred to a more limited type of pressure, such as physical violence or threats of violence.
• In contrast, undue pressure referred to the improper pressure placed by one party on another, by utilising the relationship between them. 

Today, this distinction seems to have blurred, with the terms ‘duress’, ‘undue pressure’ and ‘undue influence’ being used somewhat interchangeably. 

If you entered into a nuptial agreement under duress or subject to undue pressure, or you are defending a claim of duress by your spouse, contact Vardags today for a free initial consultation with one of our expert divorce solicitors. 

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How does the family court assess duress and undue pressure?

The common starting point when assessing whether a party has been subjected to duress or undue pressure is the much-cited case RBS v Etridge (No 2) [2001] UKHL 44. From this judgment, the following excerpt is particularly useful: 

“Equity identified broadly two forms of unacceptable conduct. The first comprises overt acts of improper pressure or coercion such as unlawful threats. Today there is much overlap with the principle of duress as this principle has subsequently developed. The second form arises out of a relationship between two persons where one has acquired over another a measure of influence, or ascendancy, of which the ascendant person then takes advantage” 

Furthermore, the court determined that undue influence is not necessarily confined to cases where there has been an abuse of trust of confidence. It may occur when a vulnerable party has been exploited by another. Given that relationships are “infinitely various”, there is no comprehensive test to determine whether someone has suffered duress or undue influence. Proving this will depend on the circumstances of the case, and the burden of proof rests on the party seeking to rely on duress or undue influence. All the circumstances include “the nature of the alleged undue influence, the personality of the parties, their relationship, the extent to which the transaction cannot readily be accounted for by the ordinary motives of ordinary persons in that relationship”. 

What is clear is that the pressure or influence must be improper. Particularly in the context of the relationship between spouses, behaviour must go beyond what might be expected of a ‘reasonable’ spouse to constitute duress or undue influence.  

The case of NA v MA [2006] EWHC 2900 (Fam) helpfully illustrates this.

In this case, which was heard prior to the Radmacher ruling, the judge did not implement a post-nuptial agreement on the basis that the wife had been subject to undue pressure and undue influence. The judge highlighted that due to the nature of the relationship between spouses, where a degree of interdependence and mutual influence are a common feature, the court must take special care to assess how each party’s conduct affected the other. Furthermore, it was held that to overturn the agreement on the basis of duress, the court must be satisfied that the wife’s will had been “overborne” by the husband’s exertion of undue pressure or influence. The judge was satisfied that this condition was met. It was determined that the wife had been subject to “continuing, unacceptable and undue pressure”, with the husband making “continual threats” in relation to the marriage ending and “bullying” the wife into “submission”. The husband’s behaviour was found to have affected the wife’s decision-making ability to the extent that her will was “overborne”.  

Therefore, caselaw would suggest that the threshold to vitiate a nuptial agreement on the basis of duress or undue pressure is relatively high.

One party stating that they will not marry the other without a nuptial agreement will generally not be sufficient in of itself, as seen in KA v MA (Prenuptial Agreement: Needs) [2018] EWHC 499 (Fam). Here, the judge highlighted that the wife had known throughout the relationship that the husband would not marry without a nuptial agreement. It was also noted that both parties were “mature, consenting adults, each of whom had been married for a number of years prior to meeting one another” and the wife was financially independent. This would suggest that the vulnerability of a party based on their personal circumstances will be considered, as well as the other party’s conduct.  

How much pressure is ‘undue pressure’?

Following Radmacher, the concept of autonomy has developed as a key principle in the law regarding nuptial agreements. To respect individual autonomy, the ‘normal pressure’ which might exist between couples contemplating a nuptial agreement will not be sufficient for the court to not give it effect. The court must be satisfied that the party did not enter into the agreement out of their own “free will”. In WC v HC (Financial Remedies Agreements) [2022] EWFC 22, the judge observed:  

“In almost every pre or post marital agreement one or other, or both, parties are under a degree of pressure…. But in the end, each party has to make a choice and unless undue pressure can be demonstrated, the court will ordinarily uphold the agreement”