Pre‑nuptial agreements are often presented as the ultimate form of certainty in financial remedy proceedings. Properly drafted, independently advised, and entered into freely, they are intended to provide clarity, limit dispute, and avoid costly litigation. But Loh v Loh‑Gronager is a powerful reminder that even the strongest prenup is not a licence to behave badly — and that conduct can still play a decisive role where fairness is put at risk.
The background
The parties entered into a detailed and sophisticated pre‑nuptial agreement which the court accepted was fully compliant with the principles in Radmacher v Granatino. The agreement disapplied sharing and compensation and limited the husband’s entitlement by reference to the length of the marriage. On its face, that would have produced an award of around £6.4 million.
However, the husband’s ultimate award was reduced to approximately £2.3 million. The reason lay not in needs, nor in any technical defect in the agreement, but in his conduct — both during the marriage and in the litigation itself.
Prenups do not authorise self‑help
One of the most striking features of the judgment is the court’s rejection of the husband’s apparent belief that the prenup entitled him to treat joint funds as his own. Cusworth J was clear that joint accounts and jointly held monies have a defined purpose, and unilateral withdrawals for personal use — even where one party asserts tacit approval or lack of objection — are not justified.
The court was unimpressed by arguments that the wife could have monitored the accounts more closely or that silence amounted to consent. A prenup may regulate what happens on divorce, but it does not rewrite the basic principles governing joint property during the marriage.
When conduct crosses the threshold
Conduct arguments in financial remedy cases rarely succeed, and the bar remains high. This case illustrates precisely what is required to meet the statutory test of conduct that would be “inequitable to disregard” under section 25(2)(g) of the Matrimonial Causes Act 1973.
Cusworth J found that the husband’s behaviour went well beyond ordinary marital or litigation friction. It included:
- repeated misuse of joint and ring‑fenced funds;
- secretive financial dealings;
- intimidation and harassment;
- and, most seriously, the fabrication and manipulation of documentary evidence.
This was not conduct being punished for its own sake. The judge carefully linked it to fairness, credibility, and the integrity of the proceedings, concluding that it would be unjust to allow the husband to receive the full benefit of the prenup in those circumstances.
Fabricated evidence: a line rarely crossed
Findings of fabricated evidence are unusual and profoundly damaging. Cusworth J described this as among the most serious forms of litigation misconduct encountered in the Family Court. Once such findings were made, the husband’s credibility was fatally undermined and his case infected throughout.
The judgment is a stark warning that attempts to manufacture or doctor evidence are likely to backfire catastrophically, affecting not just costs but the substantive outcome itself.
Fairness under Radmacher
Importantly, the court did not treat conduct and the enforceability of the prenup as separate exercises. Instead, Cusworth J analysed whether it would be fair to hold the parties to the agreement in light of the husband’s behaviour. In doing so, he effectively aligned the Radmacher fairness test with the statutory conduct principles, demonstrating how the two operate together rather than in isolation.
Costs and proportionality
The case also stands as a sobering illustration of litigation excess. The parties incurred almost £4.8 million in legal costs to determine an entitlement ultimately fixed at £2.3 million. The judge observed that something had “gone very wrong”, highlighting the destructive potential of entrenched positions and aggressive litigation strategies.
Why this case matters
Loh v Loh‑Gronager is not simply a high‑net‑worth cautionary tale. It reinforces several key principles:
- prenups do not excuse financial misconduct;
- conduct can still materially affect outcome in truly exceptional cases;
- dishonesty in proceedings is likely to be met with severe consequences; and
- litigation strategy can be just as important as legal entitlement.
For clients and practitioners alike, the message is clear: certainty only works when matched with integrity. A prenup may set the framework, but fairness — and behaviour — still matter.
