Here for you: Please note that Brookman’s services remain uninterrupted during this time. Read more

Blog

 

Prenuptial agreements play a role in a significant number of divorces in England and Wales. Since the 2010 Supreme Court decision in Radmacher v Granatino the stature of this type of agreement has been greatly enhanced. But the groundbreaking Radmacher case doesn’t mean the terms of a prenup will always dictate how finances are divided on divorce. That’s to say there are circumstances in which courts will decide that applying the provisions of a prenup aren’t a valid way to reach a financial settlement.  In interpreting prenups courts will consider the following:

  • Has the agreement been entered into freely?
  • Did both sides understand fully the financial implications?
  • In the circumstances, is it fair to hold the parties to the agreement?

 

Did one party sign the prenup under duress?

It’s fundamental to any contractual arrangement that the parties agree freely to the terms. When one party feels cornered into accepting the terms of a prenup he or she may argue that it is invalid.

Duress might occur when, for example one party refuses to marry until the agreement is signed. Courts will often insist that a prenup – to be valid – should be executed well in advance of a marriage ceremony (a period of 21 days is usually deemed sufficient to remove any suggestion of duress).

Other factors that can undermine the validity of a prenup include misrepresentation, undue influence or mistake as to the terms of the agreement. In general where there is a question mark over a party’s free will or the information relied on before entering the agreement the validity of a prenup could feasibly be challenged.

 

Were the financial implications of the prenup fully understood?

Unless there is complete transparency about each parties’ assets a prenup will be open to challenge. It’s always advisable for both sides to obtain independent legal advice so that an understanding of the legal and financial implications of the agreement be firmly established.

 

Is it fair to follow the terms of the prenup?

A prenuptial agreement can never subvert existing legislation – judges must still consider all relevant circumstances of the case when deciding on a financial settlement (Matrimonial Causes Act, 1973). In looking at whether or not a prenup results in a settlement that is fair to the parties the courts will consider several factors, including:

  • The income, earning capacity, propertyand other financial resources each party to the marriage has or is likely to have in the future
  • The financial needs, obligations and responsibilitieswhich each of the parties to the marriage has or is likely to have in the foreseeable future
  • The standard of livingenjoyed by the family before the breakdown of the marriage
  • The conductof each of the parties if that conduct us such that it would, in the opinion of the Court, be unfair to disregard it

A prenup that prevented a spouse applying for financial relief through the courts and asking for the above factors to be applied would be invalid.

 

Case study S v H

All of these issues were considered in the case of S v H  (2020). There a prenup was signed without any independent legal advice just five days ahead of the marriage. When the marriage ended, the husband – who was bankrupt – asked the courts to implement the terms of the agreement. The wife sought to activate the terms of the prenup as part of her financial relief claim. In the circumstances the judge ruled that the prenup was invalid because:

  • There was no legal advice,
  • The parties had not disclosed one another’s assets to each other
  • The agreement didn’t meet the needs of the husband

As a result the court ordered the wife to pay £675,000 to the husband and provide accommodation for his lifetime. The husband also received 60% of the wife’s pension.

 

Comment

Ordinarily a judge will attach considerable weight to a prenuptial agreement provided the conditions we’ve described have been met. Independent legal advice and full disclosure of assets is always essential. In addition, as the case of S v H demonstrates, a prenup can’t stop a spouse in dire financial straits applying to the courts for financial relief, irrespective of the terms of the agreement.

 

Contact Us

For advice on prenuptial agreements and any related family law matter please call Brookman on 44 (0) 20 7430 8470 or contact us online.

 

What Makes A Prenup Invalid?

Date: October 15th, 2020 - Written by: Brookman Solicitors

  Prenuptial agreements play a role in a significant number of divorces in England and Wales. Since the 2010 Supreme Court decision in Radmacher v Granatino the stature of this type of agreement has been greatly enhanced. But the groundbreaking Radmacher case doesn’t mean the terms of a prenup will always dictate how finances are… Read the full article

What Happens If My Spouse Goes Bankrupt During Divorce?

Date: October 7th, 2020 - Written by: Brookman Solicitors

    The bankruptcy process is one way to deal with debt you can’t pay. The assets of a bankrupt come under the control of a ‘trustee in bankruptcy’ – usually a solicitor or accountant. The trustee will ordinarily sell assets and give creditors an indication of how much they are likely to receive in… Read the full article

How Do Courts Decide International Child Residence?

Date: October 1st, 2020 - Written by: Brookman Solicitors

  When parents live in separate countries, the concept of ‘habitual residence’ is pivotal to where the child will ultimately live. Establishing habitual residence is essential to the child’s wellbeing, sense of security and development. Settling the issue also provides clarity and certainty for both parents. In the context of an acrimonious divorce or separation… Read the full article

What Happens If Our House Value Changes During Divorce?

Date: August 12th, 2020 - Written by: Brookman Solicitors

  Whether you are attempting to negotiate a financial settlement voluntarily or you are embarking on legal proceedings to secure a divorce settlement, there’ll always be a degree of uncertainty about the final outcome. Experienced family law solicitors can minimise the element of risk by analysing previous judicial reasoning, applying it to your situation and… Read the full article

Can English Courts Give Me Maintenance If I Divorce In Scotland?

Date: August 7th, 2020 - Written by: Brookman Solicitors

  Rules about where a couple lives during a marriage as well as EU divorce regulations mean that estranged husbands and wives often have a choice about where to divorce. And because courts in each country approach maintenance and financial settlements in their own way, the outcome of the divorce can be very different depending… Read the full article

How does the law protect me and my family against domestic abuse?

Date: July 28th, 2020 - Written by: Brookman Solicitors

  Domestic abuse takes many forms. It needn’t result in physical harm and can occur at any stage of a relationship, not just in the context of divorce proceedings. Men, women and children caught up in abusive relationships face considerable hurdles when attempting to remove themselves from the toxic situations they find themselves in. In… Read the full article

How Can I Best Deal With A Difficult Spouse During Divorce?

Date: May 28th, 2020 - Written by: Brookman Solicitors

  It’s not uncommon for one spouse to behave badly during the divorce process. The end of a marriage awakens all kinds of emotions and can lead to unreasonable behavior that makes finding a solution more difficult. The imminent arrival of no-fault divorce in England and Wales is likely to reduce acrimony in many cases…. Read the full article

Can My Partner Claim More In Divorce If They Gave Up Their Career?

Date: April 28th, 2020 - Written by: Brookman Solicitors

  It comes as a surprise to many of our clients going through divorce that there’s no set formula to apply when calculating financial settlements. Yes, in marriages of a reasonable length there is a principle of equal division of marital assets. But that’s only a starting point. Judges have a wide discretion to divide… Read the full article

Continuing Our Services During the Pandemic

Date: March 19th, 2020 - Written by: Brookman Solicitors

  We would like to reassure our clients that we are able operate with minimal disruption for the duration of the pandemic. Since becoming paperless a little over two years ago, all our platforms are now cloud-based, and all of our staff are able to work from home. In particular, all our solicitors will be… Read the full article


Google Reviews

Brookman Solicitors

91 Reviews

Joanne Chidwick 09/11/2020

I wanted to send a deeply personal thank you to Henry & the team at Brookman’s who have helped me through a very difficult time in my life. They have given me a truly personalised service & been incredibly sympathetic and supportive all the way through the process. I cannot thank them enough & would not hesitate in recommending them to others.

Karuppiah CT 18/10/2020

Mr Brookman was very thorough, professional and spot on. He understood my requirements, the complexities of the case and has dealt with it superbly. I'm very pleased with the service provided. Thanks very much.

Mohamed Ashraf Rashid 16/09/2020

Divorce is not very easy and sometimes one doesn't know what to do but when you have the right people dealing with the matter than it makes it easier.

I was recommended to Henry and initially I was hesitant to use a lawyer for my divorce matter purely because of the costs but in certain circumstances, it is better to go for it. It may seem costly but one doesn't have a choice.

The initial appt gives one an opportunity to hear the lawyer out and then to ask questions relevant to one's case.

The service was great - Thank you

Yesima Hamid 04/09/2020

I want to highly commend Brookman Solicitors firm. I had the privilege of getting very thorough and sensible advice from their solicitor Jennifer Douglas. I don't have enough praise for her. She made me feel at ease and 'got me' and understood very well all the issues and her advice was on point. I felt she had my interest at heart in all the different matters. She was very accommodating and willing. She truly made a difference. She has great insight and I truly recommend her and the firm. They are very professional with the human touch.

Roohie Mahajan 16/08/2020

I am so happy that I hired their services. I am from India and it was my international divorce case. My ex husband is in the UK. I had a free telephone conversation with Henry Brookman and I was so satisfied that without even meeting him I was so confident. My case was handled in the best way possible.

He is probably the one of the best lawyers in the world. He is extremely competent, professional, intelligent and empathetic. The only lawyer who genuinely work to help you rather than making money. He is a very experienced lawyer and he saved me so much money. He is so calm and kind towards his approach. He is the most genuine person I have come across.

I just came to London once to attend my hearing. My husband and his solicitors made it so complicated. My ex husband has to spend double the amount of legal fees than me. This is the difference between hiring a good experienced lawyer. Their fees might be expensive but good lawyer will make you save money at the end. Finally at the end I won the case and my husband has to pay all my legal fees without me travelling to the UK. I will always be eternally grateful to Henry Brookman and Brookman Solicitors. I am falling short of words to praise them.

I highly recommend their services. Keep up the good work.