Sheriff finds post-nuptial agreement between divorcing American ex-NASA employees unenforceable

The defender, M(M), had signed the agreement with the pursuer, M(C), who raised the action for divorce, in 2018. The couple had moved to Edinburgh in June 2017 following early retirement.

The case was heard by Sheriff Alison Stirling. The pursuer was represented by Dewar, advocate, and the defender by Malcolm, advocate.

Signing his life away

Both parties were formerly employed by NASA, as a spacecraft engineer and a systems engineer, respectively. They began their relationship in 2007 when they were both 20 years old and married in the United States in June 2009. The relationship was described as being “very intense from the start”.

About a year into the marriage, the parties began to argue after the pursuer reacted negatively to the defender telling her he had found another woman to be attractive. She viewed this as the defender being unfaithful to the relationship and gave him a list of things that he could do to regain her trust, including attending therapy and getting circumcised, which he did.

In July 2018, the relationship between the parties had further deteriorated to the extent that the defender was frequently told to leave their flat and sleep elsewhere. The defender, whose life had begun to entirely revolve around his relationship, became depressed and was unable to think clearly. After reading an online blog about how men who had cheated on their partners could make a post-nuptial agreement with an infidelity clause to make their partners feel safe again, he proposed the idea to the pursuer.

On 5 September 2018, the parties signed a post-nuptial agreement, under which the defender would be entitled to only $50,000 along with his personal effects. The pursuer would be entitled to all remaining property, which was valued at over $800,000. The final agreement contained no infidelity clause, and during the execution of the agreement a witness told the defender he was “signing his life away”.

The relationship continued to deteriorate after the signing of the agreement, with the pursuer becoming physically abusive towards the defender in October 2018. On 19 December 2018, the defender left the flat permanently. After two years of non-cohabitation, the pursuer filed for divorce, and sought to enforce the post-nuptial agreement.

It was submitted for the defender that the agreement was not fair and reasonable at the time it was entered into. The defender was not in a good state of mind when it was signed, and he had not had access to proper legal advice about it. The inherent unfairness of the agreement could be seen in the fact that he would only receive six per cent of the parties’ assets.

The pursuer submitted that unequal distribution of matrimonial assets was not per se evidence of unfairness. Counsel invited the court to find her to be a credible and reliable witness, noting that she was shocked by the proposition that she had required her husband to undergo circumcision. Further, she had encouraged the defender to take $50,000 rather than $1,000 in the agreement, which was not consistent with an abusive relationship where she took all she could from the defender.

Agreement of no benefit

In her opinion, Sheriff Stirling said of the parties’ evidence: “I prefer the defender’s account, and accept that he was the victim. The pursuer’s animosity to the defender was obvious. There were a number of occasions where the pursuer gratuitously criticised the defender during the course of an answer.”

She continued: “The very way in which the pursuer gave her evidence lent support to the defender’s account of what was going on in their relationship. She was not open to the possibility that there might be a version of events different from her own, and that she might be wrong.”

Assessing the enforceability of the post-nuptial agreement, Sheriff Stirling explained: “The agreement was of no benefit to the defender: he handed over virtually his whole share of matrimonial property for nothing. The parties did not reconcile. If the parties had reconciled for some time, then there might have been an argument that what he got from the agreement was a further few years of marriage. That might have been something to set off against the award of $750,000 USD to the pursuer. But there was no reconciliation.”

She continued: “Knowing that the defender was vulnerable, [the pursuer] allowed him to enter into an agreement in terms of which she thought she was entitled to 94 per cent of the parties’ assets the day after the agreement was signed. It was wholly irrational for the defender to sign up to such an agreement whereby there was no incentive to the pursuer to reconcile and the defender stood to lose everything.”

For these reasons, Sheriff Stirling granted decree of divorce, and set aside the post-nuptial agreement.

In determining the date of separation, she decided: “Having regard to the pursuer’s behaviour, it is reasonable to infer that she thought the marriage was over by the time the post-nuptial agreement was signed. Looking at the matter objectively, the parties ceased to live together as man and wife on 31 July 2018.”