Be aware of the lim­its to a pre-nup ac­cord

Clare Cur­ran, part­ner in charge of the mat­ri­mo­nial depart­ment at Wor­thing­tons So­lic­i­tors, dis­cusses pre-nup­tial agree­ments and their va­lid­ity in North­ern Ire­land

Belfast Telegraph - Business Telegraph - - Innovation - Should you have any queries aris­ing from this ar­ti­cle, please do not hes­i­tate to con­tact one of our spe­cial­ist mat­ri­mo­nial lawyers by email on fam­i­ly­law@wor­thing­ton­slaw.co.uk or tele­phone the of­fice on 028 91811538 to dis­cuss.

Apre-nup­tial agree­ment is a for­mal agree­ment be­tween a cou­ple which is nor­mally de­signed to take ef­fect in the event of a mar­riage break­down.

Such agree­ments may be drawn up to ap­por­tion rights to prop­erty and other fi­nances.

‘Pre-nups’ are dealt with dif­fer­ently to other types of con­tracts. How­ever, should such an agree­ment sub­se­quently be­come a mat­ter of dis­pute in the con­text of di­vorce pro­ceed­ings, any stip­u­lated terms of the agree­ment will be sub­ject to the dis­cre­tion of the court un­der Ar­ti­cle 26(1) of the Mat­ri­mo­nial Causes Order (North­ern Ire­land) 1978 which al­lows the court to ‘vary for the ben­e­fit of the par­ties to the mar­riage and of the chil­dren of the fam­ily… any ante-nup­tial or post-nup­tial set­tle­ment’.

His­tor­i­cally, pre-nup­tial agree­ments have not been en­force­able on the grounds that they were con­trary to public pol­icy and there­fore void, but over the years there has been a shift in the ap- proach of the courts. In the late 1990s Mr Jus­tice Wil­son in SvS (Di­vorce Stay­ing Pro­ceed­ings) 1997 2 FLR sounded a ‘cau­tion­ary note’ against the grow­ing be­lief that no sig­nif­i­cant weight should be af­forded to a pre-nup­tial agree­ment and in­di­cated that ‘ there will come a case... where the cir­cum­stances sur­round­ing the pre-nup­tial agree­ment… when viewed in the con­text of the other cir­cum­stances of the case could prove in­flu­en­tial or even cru­cial’.

In 2002 such a case came be­fore the English fam­ily courts in KvK (An­cil­lary Re­lief: Prenup­tial Agree­ment) (2003) 1 FLR when a wife sought to de­part from a pre-nup­tial agree­ment en­tered into be­tween the par­ties.

The court in that case held the wife sub­stan­tially to the terms of the agree­ment but cau­tioned that en­try into such an agree­ment should be con­sid­ered as ‘con­duct which it would be in­equitable to dis­re­gard’ un­der the terms of the gov­ern­ing leg­is­la­tion.

In more re­cent years, the lead­ing case in this area, Rad­macher v Gra­natino, was de­cided in the Supreme Court in 2010.

It was de­cided in that case that where such agree­ments are en­tered in to by each party with a full knowl­edge of the im­pli­ca­tions and full dis­clo­sure of the as­sets at stake, the court will hold the par­ties to the terms of such an agree­ment, un­less it would be ob­vi­ously un­fair to do so.

If con­tem­plat­ing en­ter­ing into such an agree­ment, you should bear in mind the lim­i­ta­tions of do­ing so.

If you de­cide to pro­ceed, it is highly ad­vis­able to take sep­a­rate and in­de­pen­dent le­gal ad­vice, to pay from your own re­sources for such ad­vice, to ex­change full dis­clo­sure of all the rel­e­vant fi­nances and take time to ne­go­ti­ate and con­sider the pre­cise terms of any agree­ment well in ad­vance of any wed­ding date.

Con­sider that, in the event of such an agree­ment be­ing called in to ques­tion, it will fall on the party seeking to over­turn the agree­ment to per­suade the court that the terms should not stand, most likely on the ba­sis that it would be man­i­festly un­fair to up­hold its terms in view of the rea­son­able needs and re­sources of that party or any de­pen­dent chil­dren of the mar­riage.

His­tor­i­cally they have not been en­force­able... but there has been a shift in the ap­proach of the courts

If you plan to pro­ceed it is highly ad­vis­able to take sep­a­rate and in­de­pen­dent le­gal ad­vice

if you’re con­sid­er­ing a pre-nup, bear in mind the lim­i­ta­tions of do­ing so

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