Traditionally pre-nuptial agreements were considered to be against public policy and were not binding. However, since a landmark judgment from a case heard in the Supreme Court, this view was said to be "obsolete and should be swept away".  

 

The Supreme Court stated that the following would influence the validity of a pre-nuptial agreement: 

 

1. Whether the document has been freely entered into by each party and whether they fully understand the consequences if signed. However, if it would be unfair to bind the parties to the agreement, the fact that the agreement was entered into freely in full knowledge of the implications would be irrelevant. In determining whether it would be fair to bind the parties to the pre-nuptial  agreement, the court will have due consideration to the following:

 

(a) the reasonable requirements of any children, as these will not be forsaken; 

(b) the decisions of the parties as to the way in which their financial affairs should be regulated, predominantly where the agreement seeks to protect property purchased prior to the marriage; and

(c) if the agreement intends to leave one party in a quandary of real need while the other party receives the opposite; this will be unfair. 

 

The needs of the parties are of paramount importance in determining whether the court will uphold a pre-nuptial agreement.

 

2. Whether there is material lack of disclosure and information or receipt of advice. This is significant, as there is no absolute rule for disclosure of all assets, property and monies or for obtaining independent legal advice. This has been interpreted differently in subsequent case law and is therefore a factor causing contention. 

 

3. The existence of duress, fraud or misrepresentation. In determining whether this has occurred the following factors will be considered: 

 

(a) whether a dominant position has been taken advantage of;

(b) the parties’ emotional state; 

(c) the parties’ ages and maturity 

(d) whether the parties have been married before.

 

In summation, although entering into an agreement providing for future separation is never an easy topic to broach, pre-nuptial agreements are worth considering if prepared appropriately, as they can be a binding factor in subsequent proceedings. 

This article is written by  Ipek Bekir, Head of Family department at Lester Dominic Solicitors.