The recent case of SvH highlights the risk of entering into a pre nup without proper legal advice.

The parties signed a prenuptial agreement five days before the wedding. The husband said that he was summoned to a notary’s office to sign a ready prepared document whereas the wife said that they had jointly agreed after careful thought jointly to instruct the notary to prepare the agreement. Neither party took legal advice before signing the prenuptial agreement and there was no formal disclosure of their financial circumstances.

The wife ran her own business during the marriage. The husband did not work and was bankrupt by the time of the divorce.

The wife asked the court to dismiss the husband’s financial claims, the prenuptial having provided that each party would keep what they had pre marriage.

The court however came down on the side of the husband. Although the parties’ autonomy to arrange their own affairs was important, the court retained the power to achieve a just outcome. There was no formal process of disclosure, there was no advice given to either party, other than five days before the ceremony by the notary who prepared the document.

The judge ordered the wife to pay the husband £675,000 to clear his debts and transfer with a mortgage free property on trust and 60% of her pension.

The case emphases that to be valid the prenuptial agreement must have been freely entered into and with a full appreciation of its implications and that it must be fair to hold the parties to their agreement.

This requires each party to have a clear understanding of the other party’s financial position with the benefit of legal advice. The judge also observed that “an agreement entered into on the eve of a wedding can sometimes be tainted by real or perceived pressure caused by the imminence of the ceremony”.

So, in summary, prenuptial agreements are frequently upheld by the courts but it is a mistake to try and cut corners. Get proper legal advice in good time and make sure that the agreement is objectively fair.

Geldards Family Team has vast experience of dealing with prenuptial agreements and can guide you in deciding if you need a prenuptial agreement and if so how best to ensure its enforceability.

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