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Blog: Will a Prenup hold up in court?

Feb 5, 2019, 07:12 AM
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Date : Feb 5, 2019, 07:16 AM
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James Ferguson, partner and head of family law at Boodle Hatfield, and Katie Male, associate, discuss pre-nups.

The "sticking power" of these agreements is highly fact-specific. in broad terms, however, since the Supreme Court's 2010 landmark decision in the case of Radmacher v Granatino, the Court is likely to give effect to a pre-nup or post-nup if the following requirements are met:

  1. There is an absence of pressure on either spouse. In the case of a pre-nup, it is best practice to sign the agreement no less than 28 days before the wedding to avoid any suggestion of last-minute pressure.
  2. Both parties must understand the nature and effect of the document. This requirement is usually satisfied by each party taking their own independent specialist legal advice and each party giving the other financial disclosure prior to the agreement being made.
  3. The agreement must be considered fair to both parties in the circumstances existing at the time of divorce.

The measure of what is "fair" is potentially fraught with difficulty and will differ greatly from one case to the next. An agreement will be deemed to be fair if it meets the "reasonable needs" of the financially weaker spouse, and reasonable needs are determined by reference to the standard of living enjoyed in the latter years of the marriage. It may well be, therefore, that what seemed fair at the outset of the marriage when the agreement was made is no longer deemed fair by the time of divorce.

We acted for the wife in the reported High Court case of KA v MA and successfully argued that it would be grossly unfair to hold her to the terms of the pre-nup she and her husband had signed 10 years previously. With our assistance and expertise in this area, our client was able to secure an award that was far in excess of the provision that the pre-nup purported to make for her.

 
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