Pre-Nuptial Agreements - not just for the rich and famous

Once again, we find Pre-Nuptial Agreements featuring in the showbiz headlines. Not long after the news broke that American actor Kevin Costner was seeking to uphold a Pre-Nuptial Agreement entered into between him and his wife, it transpires that Britney Spears is now on the receiving end of divorce proceedings.

Sources say that Britney and her husband entered into an “iron-clad” Pre-Nuptial Agreement before their marriage just 14 months ago. The rumours are that Britney’s husband, Sam Asghari, is threatening to reveal embarrassing details if she does not renegotiate the previously agreed terms.

Pre-Nuptial Agreements are no longer just for the rich and famous and are becoming increasingly popular here.

So, what is a Pre-Nuptial Agreement? Will a Pre-Nuptial Agreement be upheld, or can it be challenged by either party?

Pre-Nuptial agreements, often known as “prenups”, are not automatically enforceable in the Family Court of England and Wales, however, they can carry significant weight in certain circumstances. The Court can still undertake its role to scrutinise the terms of any financial settlement and its impact upon the financial outcome for the parties as it would in any other marriage breakdown.

The Court’s jurisdiction cannot be ousted by the Pre-Nuptial agreement, although the Court will take its existence into consideration. There is generally an onus on the party who wishes to depart from the terms of the agreement to prove that its terms are in whole or in part so unfair that it would be inequitable to be bound by it.

A Pre-Nuptial Agreement is more likely to be upheld by the Court in circumstances where:

• The Agreement has been entered into freely.

• The terms of the Agreement are fair, and the needs of both parties are met.

• The Agreement is contractually valid.

• The Agreement has been made at least 28 days before the wedding date.

• Both parties have disclosed their respective financial positions to the other party before the Agreement is completed.

• Both parties understand the implications of the Agreement and have received independent legal advice.

Agreements are least likely to be adhered to by the Court where for example:

• The agreement would lead to significant injustice. There may have been significant events since the agreement. For example, the birth of a child, the loss of employment or incapacity etc for which the Agreement made no provision.

• The lapse of time since the Agreement was reached where there is more opportunity for injustice to have crept in.

• One or both parties did not receive legal advice before entering into the Agreement.

• One or both parties failed to give disclosure of assets and property before the Agreement was made.

There is always an element of uncertainty as ultimately the Court will need to exercise their discretion subject to the specific circumstances of the case.

If you are considering having a Pre-Nuptial Agreement prepared or one has already been executed between you and your partner and you require further advice, please contact a member of our Family Team at either of our Warwickshire (01926 887700) or Leicestershire (01455 610747) offices for a consultation.