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In recent years, nuptial agreements have been increasingly accepted by the courts as a way for the parties to set out their intentions if they were to later separate. Whilst they are technically not binding, the Courts are prepared to follow the agreements, provided they follow certain guidelines and are reasonable; how much weight they will be given will ultimately depend upon the position at the time of the divorce.

In a recent case, the wife had entered into a pre-nuptial agreement. However, when the couple later divorced she was unhappy with the financial settlement. The Court found that she had not been coerced into signing the agreement and upheld the original terms – awarding her a lump sum of £600k plus £2k per month maintenance.

The wife took the matter to the Court of Appeal who upheld the view that she had entered into the agreement of her own free-will and so the husband’s substantial wealth should be protected. However, the Court was not satisfied that the outcome was a fair one and awarded the wife a greater lump sum of £2.73 million with no maintenance, to reflect the standard of living enjoyed during the marriage.

Whilst the original agreement was not upheld in its entirety, it is clear that the Court gave it a great deal of weight when deciding the final order. The husband retained the vast majority of his wealth and his business interests, with the wife receiving less than she normally would have done in the absence of a nuptial agreement.

What does this mean in practice?

As demonstrated in this case, one of the tests that the Court will consider when reviewing a nuptial agreement is that of fairness. If you wish to enter into a nuptial agreement (either pre or post marriage), it is important, as the Court of Appeal highlighted, to ensure it is “fair” and that it will meet the changing needs of the parties as the marriage develops. It is therefore also important to keep any existing agreement under review.

Nuptial agreements are complex legal documents that should only be entered into, or reviewed, with proper consideration and legal advice. You should expect to be bound by such an agreement and must therefore consider the terms carefully.

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