Agreements: Conduct, Timing and Privilege
Three recent decisions — two from the Family Court of England and Wales and one from the Hong Kong Court of Appeal — deal with different aspects of agreements in a divorce: the circumstances in which that agreement can be reopened, undermined or shut out of evidence altogether.
Conduct within a nuptial agreement: Loh v Loh-Gronager [2025] EWFC 483
The parties entered into a pre-nuptial agreement (“PNA”) in 2019, married, and separated in May 2023. There were no children. Both accepted that the PNA governed the outcome. One of the questions at issue was whether the husband’s entitlement should be reduced on account of his conduct (§1).
Cusworth J found the husband’s behaviour “deplorable on any view” (§62). He had removed funds from joint accounts funded by the wife and converted them into assets in his own name, contrary to the PNA’s separate property provisions (§62); instructed a private investigator and set up an Instagram account publishing photographs of the wife with “the object … of belittling her and embarrassing her” (§64); and, most seriously, attempted to create false evidence in the form of three emails — two altered to appear as if blind-copied to the wife, the third “entirely concocted” (§65).
The question of doctrinal interest arose in §§58–60 of the judgment. The wife advanced two routes for her “conduct” arguments:
(i) the conduct test under s 25(2)(g) of the Matrimonial Causes Act 1973 (similar to that in Hong Kong law in s 7(1) of the Matrimonial Proceedings and Property Ordinance Cap 192 (“MPPO”));[1] and
(ii) consideration under Radmacher v Granatino [2010] UKSC 42[2] of the fairness factor in deciding whether to hold the parties to the PNA (§58).
Cusworth J held that “inequitable” under the statute “can mean no more or less than ‘unfair’”, that fairness is likewise the key element of the Radmacher test, and that accordingly “there should be no real difference between the two tests, and … they should in effect be considered together” — one going to the fair implementation of the agreement, the other to broader fairness (§59).
Importantly, he flagged but did not resolve the underlying tension, holding that appellate authority has, for policy reasons, confined application of the statutory conduct test to alter the outcome in only the most serious cases, “[h]owever, when the implementation of a nuptial agreement has been in issue the application of the principle of fairness has not noticeably been so constrained” (§60).
As the husband’s behaviour “comfortably crosse[d] the threshold” for s 25(2)(g), the judge did not need to go further to determine “possible tension between the application of the tests” under the two routes (§60).
Having considered the conduct test and fairness in light of the PNA, the Court made a deduction from the husband’s award but held that to extinguish the husband’s entitlement altogether would be “too extreme” (§§68-69) — subject to a costs judgment where “a very substantial order may be made against him” (§70).
The analysis is likely to be good guidance for the question of tension between the statutory assessment of conduct under s 7(1) of the Matrimonial Proceedings and Property Ordinance (Cap 192), LKW v DD (2010) 13 HKCFAR 537, and the fairness factor laid down by SPH v SA (2014) 17 HKCFAR 364 on nuptial agreements. The unresolved question — whether a conduct-based reduction can be achieved through the fairness gateway of a nuptial agreement at a lower threshold than the statute permits — is equally live here.
The draft consent order implemented for decades but left unsealed: Lin v Par [2025] EWFC 401
Peel J described this as “a highly unusual case” (§2). The parties separated in 2000 and reached a Xydhias agreement on 25 October 2001 dividing assets equally, incorporated into a draft consent order (§§2, 47, 93). The draft was never sent to the court for approval and sealing, but both parties believed it had been formalised and implemented it in full (§3). Over twenty years later, prompted by a third party whose motives the judge found “improper, even malicious” (§5), the wife discovered that no final order had been made and issued a claim seeking £10 million (§6), arguing that the agreement was vitiated by material non-disclosure and undue pressure (§123).
Peel J rejected the wife’s claim, primarily due to the long lapse of time. Whilst the Court accepted that the wife was not restrained by any limitation period for a financial remedies application and she was entitled to apply (§124),[3] the delay of over 20 years was considered a highly relevant factor within the overarching analysis of fairness (§125), and the effect on the respondent matters: “[t]he longer the lapse of time the more secure should he or she feel in the re-arrangement of financial affairs” (§126, citing Chambers v Chambers). The husband could point to “both the long delay AND the clear agreement freely entered into and implemented by the parties” (§128), while the wife had taken no steps over two decades to inquire into her claims, making it “inherently unfair” to subject him to a claim twenty years after a settlement both believed binding (§133).
As a result, all the ancillary relief claims were dismissed and an immediate clean break was ordered (§145).
The Hong Kong court have permitted late applications for ancillary relief years after decree absolute[4] — including 8.5 years in YWM v SKB [2007] HKFLR 230, 6 years in YCWR v YCW [2024] HKFC 45 — with delay treated as a discretionary factor under section 7 of the MPPO rather than a bar to the application, and with the ultimate outcome turning on whether the delay is adequately explained, whether the respondent is prejudiced, and whether the applicant has a seriously arguable case.
Where such leave is granted and the parties have long operated in accordance with an agreement that was never converted into a consent order, Lin v Par [2025] EWFC 401 suggests that it may be unfair for the court to adopt an approach inconsistent with the parties’ established course of dealing.
FDR privilege is absolute: CSFK v HWH [2026] HKCA 1036
The Hong Kong Court of Appeal considered a memorandum drafted during a first FDR appointment and signed inside the court building shortly after the hearing was adjourned at 4:32 pm (§§1, 4), and the parties did not obtain the court’s approval of the memorandum on the same day. Five days later the wife resiled (§5). Whilst the Family Court had held the memorandum admissible at the ancillary relief trial, the Court of Appeal allowed the appeal and directed for it to be not admissible at trial.
The Court held the memorandum was made “in the course of” the FDR, so that §8(c) of Practice Direction 15.11 barred its admission: “[e]vidence of anything said or of any admission made in the course of the [FDR] hearing shall not be admissible in evidence in a court, save upon the trial of a person for an offence committed at the hearing” (§15). The FDR judge’s adjournment “was not intended to end the FDR there and then; instead, it was to extend the protective environment of the FDR, at least for that day” (§37). Drawing a line at 4:32 pm would be “a mechanistic approach” (§38); negotiations frequently continue when a hearing is stood down without the judge present (§39); and “[t]he safe harbour of the FDR process should not abandon them the moment the 1st FDR Judge stepped out of the court room” (§40), and to hold to the contrary would have “the consequence of catching the unwary” (§41).
The Court of Appeal at §32 set out helpful guidance distinguishing the FDR regime from the “without prejudice” rule: the FDR is a creature of Practice Direction, with confidentiality derived from the forum itself and compulsory obligations; the bar on disclosure is absolute save for the §8(c) exception, whereas without prejudice privilege ceases with the settlement agreement and the court may then determine whether a settlement was reached; the FDR imposes compulsory full disclosure, best endeavours and personal attendance; and crucially for an FDR settlement the court’s approval is required before the terms become final and enforceable, whereas under the WP rule it is not. “[C]are must be taken not to conflate the two regimes” (§33) — so authorities on parties resiling from compromise agreements (Xydhias), post-nuptial agreements (Edgar v Edgar), nuptial agreements (LQ v SF [2025] HKFLR 371) and pre-nuptial agreements (Crossley v Crossley) did not assist, being agreements made outside the FDR regime (§33). An agreement reached in the FDR process creates no contract enforceable at law and binds only if incorporated into a consent order: PD 15.11 §8(g) (§20). A waiver argument relied on by the husband also failed: the wife had asserted FDR privilege in her hearing note and list of disputed issues, and merely alluding to the memorandum at a contested hearing is not waiver (§§56–57).
Practical takeaways on these recent decisions on agreements in the divorce process:
• Where conduct is alleged against a party seeking to enforce a nuptial agreement, the party alleging the misconduct may argue both the statutory conduct route and the PNA fairness route, but ought to be alive to the unresolved threshold question flagged at §60 of Loh.
• A settlement implemented but never sealed is not final. However, delay and reliance remain powerful fairness factors (Lin, §§124–128, 133).
• When participating in FDR and trying to get the sparring former spouses over the finishing line, do not treat a document signed in the court building on the day of an adjourned FDR as an ordinary without prejudice settlement. The client should be advised on its subsequent inadmissibility at trial and unenforceability until it has been approved by the court after the court has conducted its own review under s 7 MPPO (CSFK v HWH, §20).
Authored by Isabel Tam.
[1] See further LKW v DD [2010] 13 HKCFAR 537 at §§99-105 discussing “obvious and gross” as the threshold test. “It is self-evident that s.7 of the MPPO (s.7) and s.25 of the MCA 1973 (s.25) are closely related in content and structure. It is therefore unsurprising that the Hong Kong courts have consistently looked to the English case-law for persuasive guidance as to the interpretation and application of s.7.”: LKW v DD at §11.
[2] Applied in Hong Kong in SPH v SA (2014) 17 HKCFAR 364.
[3] Citing Wyatt v Vince [2015] UKSC 4.
[4] On the making of delayed claims after the decree of divorce, see s.4(1) and s.6(1)of the MPPO and Chan Chi Wing v Chan Tse Yook Kee (unreported, CACV 114 & 119/1989, 28 November 1989) at p.3. See also the procedural requirements in the rule 68 of the Matrimonial Causes Rules (Cap 179A)
Isabel Tam
“She’s very articulate and is good at attention to detail. She gives us comprehensive advice that is very practical. I think she’s a good advocate.”
Chambers and Partners Greater China Region 2026
Administrative & Public Law: The Bar and Family/Matrimonial: The Bar
Recognised as Leading Junior in Legal 500 (2026, Administrative and Public Law & Family and private client) and ranked in Chambers and Partners Greater China Region 2026 (Administrative & Public Law: The Bar and Family/Matrimonial: The Bar), Isabel’s practice focuses on family law, public law, and regulatory matters. She has extensive experience in general matrimonial finance and preservation of assets, as well as particular expertise in complex legal issues arising out of LGBTQ/modern families and the dissolution of families with cross-border elements. She has acted as sole counsel in the Court of Appeal, Court of First Instance, District Court, Magistrates’ Courts, and the Court of Final Appeal.
Isabel has been involved in landmark family law cases concerning modern families and LGBTQ rights in Hong Kong. Notably, she represented the non-biological parent in AA v BB [2021] 2 HKLRD 1225, securing guardianship and joint custody for a same-sex couple. She was involved in NF v R [2023] 5 HKLRD 58, a case resulting in a novel type of relief, a declaration of “parentage at common law” for a same-sex parent. Her expertise in family law is augmented by her experience in other related areas including in particular tax (Koo Ming Kown & Anor v The Commissioner of Inland Revenue [2021] 3 HKLRD 642 on liability for additional tax), mental incapacitated persons, and trust claims.
She is a contributor to the current editions of Hong Kong Civil Procedure and Bullen & Leake & Jacob’s Hong Kong Precedents of Pleadings.
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This article was first published on 2 October 2026.
Disclaimer: This article does not constitute legal advice and seeks to set out the general principles of the law. Detailed advice should therefore be sought from a legal professional relating to the individual merits and facts of a particular case. The photographs which appear in this article are included for decorative purposes only and should not be taken as a depiction of any matter to which the case is related. The views and opinions expressed in this article/material are solely those of the members authoring it and do not necessarily reflect the official policy or position of Denis Chang’s Chambers, or of any other member or members of Denis Chang’s Chambers.