Pre-nuptial agreements are often seen as setting the financial “rules of the game” in the event of divorce. But what happens when one party starts moving money around during the marriage — particularly from joint accounts?
Wei-Lyn Loh v Ardal Loh-Gronager [2025] EWFC 483, a recent decision involving Cusworth J, offers a sharp reminder that conduct and pre-nuptial agreements can interact in powerful ways — and not always in the way one party might expect.
The Key Issue: Money Removed During the Marriage
In this case, the husband had unilaterally removed sums from a mortgage account and joint bank accounts during the marriage.
At first glance, a common argument might be: “I’ve already taken that money — so it’s effectively mine.”
But the court took a different approach.
The Role of the Pre-Nuptial Agreement
The parties had entered into a pre-nuptial agreement, which played a central role in the court’s reasoning. Rather than treating the withdrawn funds as outside the financial landscape, the court held that the sums removed by the husband were to be treated as forming part of his entitlement under the pre-nup.
In practical terms, this meant:
- The husband could not gain an advantage by taking funds early
- The withdrawals were effectively “brought back into the pot” when assessing what he should receive
This is an important point for clients: you cannot sidestep a pre-nup by moving money around during the marriage or on separation.
Conduct Still Matters
What makes the case particularly interesting is that the court’s approach was influenced by findings of conduct.
While conduct arguments in financial remedy proceedings face a high threshold, the court was clearly concerned about:
- the unilateral nature of the withdrawals
- the lack of agreement between the parties
- the broader context in which the funds were removed
Rather than treating the issue purely as an accounting exercise, the court viewed the husband’s actions as relevant to how fairness should be achieved under the pre-nuptial framework.
A Subtle but Important Distinction
This was not a classic “add-back” case in the strict sense.
Instead, the court effectively said:
- The pre-nup defines what each party should receive
- The husband has already taken part of his share
- Therefore, those sums must be credited against his entitlement
This avoids double-counting and ensures the outcome remains aligned with the agreement.
Practical Lessons for Clients
This case offers several clear takeaways:
- A pre-nup is not something you can work around
Moving money unilaterally will not defeat its effect. - Joint funds are not “free for the taking”
Even during a marriage, unilateral withdrawals can be scrutinised. - Conduct can influence how a pre-nup is applied
While rare, behaviour that undermines fairness can affect the outcome. - Early legal advice matters
Taking action without advice — particularly involving significant sums — can backfire.
The Bigger Picture
Pre-nuptial agreements are increasingly influential in financial remedy cases. But they do not operate in a vacuum.
The court retains a supervisory role to ensure that:
- the agreement is applied fairly
- neither party gains an unfair advantage
- and the overall outcome remains just
Cases like this demonstrate that the court will look at both the agreement and the behaviour of the parties.
Final Thought
It can be tempting, particularly in the early stages of a relationship breakdown, to take control of finances unilaterally. But this case is a clear warning: Taking the money now does not mean you get to keep it later.
In the context of a pre-nuptial agreement, the court will ensure that what has been taken is properly accounted for — and fairness ultimately prevails.
