Prenuptial agreements will generally be enforced by the courts in England and Wales – provided the necessary conditions have been met. If you are getting divorced and your estranged spouse is refusing to stick to the terms of a valid prenup you should seek legal advice to protect your financial position. Here we highlight what makes a prenuptial agreement enforceable. We also look at a 2023 High Court which illustrates how judges closely analyse how a prenup was reached before deciding whether or not the parties should be forced to follow it.
What Makes a Prenup Valid?
A pre-nuptial agreement (sometimes called a premarital agreement) is one made before a couple get married. It specifies how assets are to be divided in the event of divorce or dissolution of a civil partnership. Courts here have not always approved them but since the 2010 Supreme Court decision in Radmacher v Granatino their status as enforceable contracts has been greatly enhanced. Now, if:
- The agreement has been entered into freely; and
- Both sides understand fully the financial implications; and
- It is it fair to hold the parties to the agreement
then generally speaking the agreement will be legally binding.
The case of S v H however is a good example of when courts won’t approve a prenup. There the couple signed the agreement five days before the wedding and neither side took legal advice before signing. The judge had no difficulty in finding ‘no value’ in the agreement. In contrast the case discussed below shows how, after examining the precise context in which the prenup was signed, the courts will willingly uphold an agreement.
Enforcing Prenups When They Are Contested: HD v WB, 2023
The 2023 High Court case of HD v WB involved complex financial remedy proceedings. The wife had immediately available assets valued in the tens of millions. The husband had a shareholding in a successful family business estimated to be worth a considerable sum. However, because of the structure of that business and the conditions attached to the husband’s share in it, the judge found that his interest could not be treated as a ‘forseeable resource’ to meet his needs (for the purposes of the financial remedy proceedings).
HD v WB: The Prenup
The couple signed a prenuptial agreement on the same day as their wedding. The husband wanted the prenuptial agreement completely overturned saying he hadn’t received legal advice, assets had not been fully disclosed, and the agreement had been entered into too quickly. The wife disagreed and wished the court to force the husband to follow the terms of the prenup.
In court detailed evidence was heard from both husband and wife and from family associates involved in negotiating the prenup. The judge was satisfied that the parties had had discussions about protecting their separate wealth and that the wife had indicated she would not marry unless there was a prenup in place.
In summing up the judge described the husband’s evidence on the prenup as ‘confused’ and even, at times ‘wrong’. In deciding to validate the prenup Mr. Justice Peel:
- Disagreed with the husband’s claim that he did not understand the prenup. He’d had plenty of time to read what was in essence a fairly straightforward document. He also had every opportunity to get independent legal advice but failed to do so
- Found that disclosure of financial assets had been sufficiently accurate
- Decided that the prenup was freely entered into by each of the parties, and they both fully appreciated its meaning and effect
Things did not go entirely the wife’s way however. As in all financial remedy cases the court here was concerned that the financial needs of the parties are met fairly. Here the judge decided that to enforce the prenuptial agreement to the letter would result in the needs of the husband not being met. In reaching this conclusion Peel J balanced the wife’s available resources against the husband’s resources, his earning capacity, the lifestyle enjoyed during the marriage and other relevant factors. He therefore made a financial award in favour of the husband to cover his financial needs – over and above what may have been due under the prenuptial agreement.
There is one interesting postscript to the decision that should act as a warning to anyone considering challenging the validity of a prenuptial agreement. The husband had failed to expose any meaningful flaw in the prenuptial agreement. And a large part of the time and expense of the court case was taken up by the husband’s insistence that the agreement should be completely disregarded. As a result the judge ordered that he contribute a hefty six figure sum toward the wife’s legal costs.
An experienced family lawyer will be able to advise you on how to approach a prenuptial agreement and whether contesting it is the best strategy for you in financial settlement negotiations.