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The use of pre-nuptial agreements is still rather controversial. On one hand the idea that one is needed can be associated with a lack of trust and is hardly romantic. On the other hand, there is an argument that agreeing that not gain anything if the relationship fails allows marriage to be about romance and love and nothing else.
However, ‘pre-nups’ are becoming increasingly common, despite not being legally enforceable in the UK and the result of a recent case has been much anticipated, as it has been widely regarded as defining the current state of legal opinion as regards the extent to which a pre-nup will be enforced.
It involved a wealthy German heiress and her French husband, who signed a pre-nup that stated that neither party would benefit should the marriage break down. The pre-nup was signed in Germany, three months before they married, on the insistence of the wife and her family. At the time, the husband, a high-earning banker, declined the opportunity to seek independent legal advice in relation to the agreement. Following their marriage the couple lived in London and had two daughters. Whilst in the UK the husband changed career and became a researcher at Oxford University and had a lower salary than he had previously.
When the marriage ended the High Court judge did not take the pre-nup into account when deciding the settlement. The wife appealed to the Court of Appeal where it was decided that the pre-nup should be given decisive weight and the Court only granted the husband what was necessary for him to care for his daughters. It considered that in the long-term his personal needs should not be taken into account. He in turn appealed to the Supreme Court.
The dispute revolved around how much weight should be given to the pre-nup which was signed by the couple and entered into freely. The Court held that where parties had entered into a pre-nup freely, with full appreciation of its implications, it would be binding. The exception would be where prevailing circumstances would make it unfair to bind the parties to the agreement.
This has been a much awaited result as the position the UK courts would take on pre-nup agreements was uncertain. It seems now that the onus will be on the party claiming the pre-nup agreement is unfair to show that it should not be enforced and to prove it has not been drawn up properly.
This case highlights the importance of seeking independent legal advice before signing any documentation that could be binding and lead to undesired results.