Will I be held to my pre-nuptial agreement?
What is a pre-nuptial agreement?
A pre-nuptial agreement is a legal document that records parties financial circumstances and how they will be divided if they separate and divorce.
It is essentially a contract signed by both parties before they marry or enter into a civil partnership.
The current status of pre-nuptial agreements in the UK.
The case of Radmacher v Granatino  is a ‘landmark’ case that provides guidance and sets the current status of pre-nuptial agreements in the UK. Pre-nuptial agreements are not strictly enforceable in the UK courts, however court should give effect to a pre-nuptial agreement that is ‘freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to the agreement’.
No agreement between the parties can override the legislation or prevent the judge from deciding on the appropriate division of assets on divorce.
Fairness can be assessed by applying the following three-stage test:
- Both parties have entered into the agreement of their own free will and without undue influence or external pressure. A party’s emotional state at the time of making the agreement, age, maturity and experience of long-term relationships are all relevant considerations made by the court.
- Both parties have full appreciation of the implications of the agreement. Before signing, each part should be in possession of all the information material to their decision to sign the agreement.
- It must be fair to hold the parties to their agreement in the circumstances prevailing. An agreement is unlikely to be fair if it leaves most of the assets to one party where each party has played an equal role in their different ways in creating those assets. The three strands of need, compensation and sharing (identified in White and Miller)are relevant considerations that may inform fairness.
But what happens when one party then seeks to renege on the agreement?
The recent case of MN v AN  perfectly demonstrates how the court will uphold a pre-nuptial agreement if it is fair and it has been entered into per the relevant criteria.
Prior to marriage the husband (whom had been divorced before and had other children) made the proposal that he would like the parties to enter into a pre-nuptial agreement. Both parties then instructed independent solicitors, who provide comprehensive advice..
During the negotiations the wife became increasingly unhappy with the proposals of the husband which lead to ‘the mother of all arguments’ and during which the husband called the wife a ‘gold-digger’ and the wife left the property.
The parties later reconciled and came to an agreement (which on all accounts appeared to be a middle ground between their respective positions) regarding the pre-nuptial agreement.
The parties went on to marry and the marriage lasted 13 years and bore 2 children. When the marriage broke down, the husband rightly sought to hold the wife to the agreement but the wife had other ideas. She attempted various arguments as to why the Court should award her more than she originally agreed to including that she was pressurised into the agreement and that it did not now meet her financial needs. The Court however held her to the agreement in its entirety.
The takeaway from this recent case is that whilst the Court retains jurisdiction to consider pre-nuptial agreements as one of the factors of a case, parties who enter into such agreements, should be expected to be held to it. There is no easy way to get out of the deal. It is therefore imperative that the agreement is entered into properly, with full disclosure and advice as to fairness. Furthermore the agreement should be reviewed regularly to ensure that it remains up to date.
If a prenuptial agreement is something you feel you and your partner would benefit from or you have been asked to enter in an agreement, then a member of our team would be happy to offer a brief, no obligation, discussion on these issues. You can contact us on 0191 226 7807 or via our website.