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Pre-nuptial agreements: back where we were? Kremen v Agrest

Date:2 AUG 2012

Paul Pavlou
Barrister, 4 Brick Court

‘My people and I have come to an agreement which satisfied us both. They are to say what they please, and I am to do what I please.' (Frederick II)

In Edgar v Edgar [1981] 2 FLR 19 Ormrod LJ gave the seminal statement in relation to agreements. That was in 1980. Basic tenets all matrimonial lawyers are familiar with, which balances the wish to give the parties a measure of autonomy but with the court providing a protective cover for any injustices.

Up to 2010, much to the dismay of many foreign based clients, prenuptial agreements were unenforceable in English law. It was said that as matter of public policy the jurisdiction of the court should not be ousted. As the ever greater convergence with our continental cousins increased the English philosophy came under increasing attack. Although the dam did not break until 2010, it would be fair to suggest that, by that time, the courts were attaching more weight to the terms of the agreements. Then the dam burst. Prenuptial agreements, it seemed were legal, but at what cost? As follows all major groundbreaking decisions, judicial interpretation at the coalface was awaited.

It is perhaps significant that once again, a new form of protective factor is invoked in the form of the court judging all matters by what is deemed to be fair. This development of autonomy however has received a welcome setback in the latest reported decision before Mostyn J.

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