InsightsInsight - Family and Divorce - POSTED: December 9 2016
Saying “I Do” to a prenuptial agreement
Prenuptial agreements may not be the most romantic part of planning your big day however they are becoming more popular and gaining momentum in the Family Courts.
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A pre-nuptial agreement can deal with everything which would need to be considered should a relationship breakdown. The list is vast, for example:
- it can deal with what should happen to the family home
- how any inherited assets or assets owned before the relationship should be dealt with
- what should happen to the pensions.
In a recent case H v H  the Family Court upheld a prenuptial agreement in respect of the husband and wife whose marriage had broken down after 12 weeks.
The husband (72) and wife (64) married in December 2013 and separated in March 2014. Prior to their marriage, they had entered into a prenuptial agreement confirming that they were each to retain what they had prior to their marriage and neither was to have a claim against the other should their marriage breakdown.
The wife did not have any significant assets however the husband had a house which was mortgage free valued at £580,000, an income of £10,000 and other capital of £60,000. The wife brought financial remedy proceedings against the husband. She sought £361,000 in total from the Husband stating that the prenuptial agreement did not cover the circumstances that had been presented to the court. The husband sought to uphold the prenuptial agreement but to resolve their dispute he offered payment of £88,000 which the wife rejected.
In summary, the court ruled:
- The wife’s needs were exactly the same as they had been prior to her marriage. The prenuptial agreement had not been entered into at the last minute by the husband and the wife.
- The court was dealing with a marriage that had subsisted for 12 weeks and with a prenuptial agreement that had been designed for a specific purpose, understood by both as to its meaning and signed without protest and with expert legal advice.
- Nothing had changed for the husband and wife that had not been in contemplation at the signing of the prenuptial agreement.
- The husband had made a published offer which, had it been accepted, would have been to the wife’s undoubted advantage. She had not accepted it. She had pursued the case in her quest for justice. In all the circumstances, the prenuptial agreement should bite. There should be no further provision for the wife.
The prenuptial agreement was therefore upheld.
Whilst prenuptial agreements are not strictly binding on the courts when a relationship breaks down the court has the power to place great weight on the agreement. Recent case law clearly demonstrates that when properly entered into the courts will uphold the prenuptial agreement.
It is however important that early legal advice is obtained on the preparation of the agreement to ensure that they are properly drafted and to ensure the best chances of having the agreement upheld by the court in the event of marital difficulty.
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