Generally speaking, pre-nuptial agreements are likely to be upheld by the court if they tick certain boxes. Primarily, the agreement should be entered into freely, the parties should seek legal advice and there should be financial disclosure. However, the court’s power cannot be ousted. If it would be unfair to hold parties to an agreement the court can make an order they believe is fair.
A recent case in the Medway Financial Remedies Court (NM v PM [2024] EWFC 199 (B)) has sparked the interest of many family lawyers due to the unique circumstances. This article explores what that case could mean for others considering a pre-nuptial agreement.
The parties
Interestingly, both the husband and wife in this case come from a legal background. The husband is a solicitor-advocate primarily dealing with criminal cases and the wife is a family law barrister.
They married in 2010, having been in significant relationships previously. They therefore decided to enter into a pre-nuptial agreement which among other clauses, specified that their marriage was not one where upon divorce a ‘50/50 division should be applied’.
The issues
One of the focal points in dispute was whether properties the husband had purchased after signing the pre-nuptial agreements were matrimonial. The court primarily needed to determine whether the pre-nuptial agreement should be upheld.
The wife argued that to uphold the agreement would be unfair but the husband disagreed.
The factors to consider
- No unfair pressure – whilst the agreement had been signed a day before the wedding, the Judge noted it had been drafted over a month before. The Judge also commented that both parties had liaised with each other to draft the agreement so it was clear it had been entered into freely, despite the short timescales.
- Both parties had legal advice – neither party sought legal advice regarding the order but the Judge noted both were legal professionals. The Judge commented that ‘the risk of making the choice they did would have been abundantly clear to any lawyer in that position’.
- There has been financial disclosure – the Judge found that there had been some broad disclosure and commented that it did not need to be ‘forensic’.
Judgement
On the more specific issue, the Judge found that the properties the husband had purchased were not matrimonial as they were purchased using money he accrued before the marriage. The pre-nuptial agreement specifically protected those pre-marital monies therefore the properties he purchased would be protected too
More generally, the Judge was critical of the wife and did not accept that she would be ‘worse off’ should the agreement be upheld. As a barrister working in London, the Judge was persuaded that she could do more to maximise her income and that her £900,000 asset pot was not to be ‘sniffed at’.
The Judge upheld the pre-nuptial agreement and made a clean break order, dismissing any claims either party had against the other.
Read the full case report here.
What does this mean for you?
Pre-nuptial agreements are becoming more common, especially in second marriages where you may already have accrued assets you wish to protect.
Whilst the specifics of this case are unique, it is a reminder of the court’s power and their ability to scrutinise. Even agreement that are perhaps not drafted or entered into in the perfect way can still be upheld by the court.
It is imperative that you seek advice if you are entering into a pre-nuptial agreement and as family law specialists, our team at E J Coombs are well-versed in the drafting of these complex documents. Book an appointment with one of our team today to find out more about how a pre-nuptial agreement could be right for you.
