Nuptial Agreements – To What Extent Can They Be Challenged?

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Are prenuptial agreements binding? 

Whilst prenuptial agreements are not formally binding in England and Wales, the Family Law courts have regarded them as persuasive and even decisive.

The court in the landmark case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 set out that, whilst not strictly binding in the event of a divorce, the terms of the agreement may now be decisive in the event of a dispute that the court deals with so long as they were entered into by both parties freely and with full appreciation of their consequences, and unless the effect of the agreement would be unfair.

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Are prenuptial agreements binding

What will make a prenuptial agreement more binding?

A prenuptial agreement could determine what you intend to happen to your money and property if your marriage or civil partnership were to end.

The courts have indicated that for an agreement to be considered fair, the following factors will be considered:

  • Whether both parties to the agreement had independent legal advice before entering it
  • Whether there was full financial disclosure—this has generally been interpreted as both parties having sufficient information to make an informed decision on whether to agree with a full understanding of its implications.
  • Whether the terms of the agreement are substantially fair, does the agreement provide for both parties' basic needs to be met in the event of a divorce?
  • That neither party felt pressurised by the other party to enter into the agreement, ensuring that there was no undue influence or coercion
  • Whether there was any fraud or misrepresentation by a party concerning the agreement, and
  • Whether legal contractual requirements were followed when the agreement was entered into, including a statement in the agreement that you and your partner intend to 'create legal relations' by entering into the agreement and that the agreement is executed as 'a deed', which includes that an independent party must witness it

Failure to comply with the above formalities and ensure the agreement meets the parties' needs may lead the court to decide that the agreement is fair.

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What will make a prenuptial agreement more binding

Can someone challenge a prenuptial agreement?

Several factors may impact whether the court upholds a nuptial agreement.

Below are some of the instances when a nuptial agreement may be challenged during divorce or dissolution proceedings:

  1. If the nuptial agreement was obtained under fraudulent circumstances or against a party's will. Any nuptial agreement may be invalidated in circumstances where one party was forced to sign under duress or if it was signed when one party would not be considered to have the capacity to do so.
  2. If the nuptial agreement was constructed in such a way, its outcome would be unfair to the other party.
  3. If, after the creation of the nuptial agreement, the facts and circumstances have significantly changed. Examples of relevant changes in circumstances include:
    • The birth of any children to the family
    • A loss of employment
    • If your spouse started a profitable new business during your marriage
    • If your spouse came into a windfall or
    • By other means, accumulated additional property or assets.

Provided the terms of the agreement are substantially fair, and the needs of the parties and children can be met, the court is increasingly willing to give weight to nuptial agreements.

The court will deal with challenges to nuptial agreements on a case-by-case basis and consider the circumstances as a whole.

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Can someone challenge a prenuptial agreement

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At Myerson, our specialist Family Law solicitors are on-hand to help you with any aspect of the challenge and advise you on what basis your nuptial agreement may be challenged. Please get in touch with the Myerson Family team.

0161 941 4000