We have seen in this mini-series how there has been a shift towards giving effect to pre-nup agreements. That’s all very well in theory, but how does it work out in court? Here are two high profile cases.
In the case of Luckwell v Limata  EWHC 502, the wife had received substantial financial gifts and property from her parents and her assets were worth more than £6m. The husband had one small property at the time of the marriage and an annual income of £60,000. They entered into a pre-nup agreement, in which the husband relinquished all claim to his wife’s assets, while the wife agreed that she would support herself and their children if the relationship failed. The agreement made no provision for support for the husband.
When the marriage ended, the husband was left without a home and had to live in very temporary conditions at his mother’s bed and breakfast establishment. Following a serious dispute with his brother in law, for whom he had worked, the husband had also found it difficult to find another job and was only earning the minimum wage, so was having trouble supporting himself. The judge ruled that the couple had entered into the agreement with full awareness of the consequences, and as such, the majority of the wife’s assets should remain her property. However, in addition to the agreement, there were two factors he had to consider. The husband was in dire need, while the wife was enjoying such a surplus to her requirements. Secondly, this was detrimental to the reasonable requirements of the children, as he had no accommodation for them to visit him. Some adjustment had to be made to provide for him. The judge therefore ordered the wife to provide money for the husband to buy a home, where he would then be able to have their children to stay. Once the children were adults, he will have to repay almost half of that money; the rest will remain his so that he will still have somewhere to live, albeit a smaller property.
In the case of BN v MA  EWHC 4250 (fam) the judge rejected the wife’s application for the full range of financial remedies available on divorce, asking with seeming incredulity on ‘what possible basis the wife considered it appropriate’, given that the couple had signed a pre-nup only 15 months previously. The document was clearly headed with a warning saying that the parties should not sign unless they intended to be bound by its terms. The judge said
“when adjudicating a question of interim maintenance.., the court should seek to apply the terms of the prenuptial agreement as closely and as practically as it can, unless the evidence of the wife in support of her application demonstrates, to a convincing standard, that she has a likely prospect of satisfying the court that this agreement should not be upheld.”
He was not satisfied that the wife had sufficient grounds for the agreement to be set aside, and therefore awarded only what had been already stipulated in the agreement with regard to the husband’s support for the wife and their children, which was generous enough to provide for them. The husband’s very substantial £13.8m assets remained his.
In both cases then, the pre-nup did protect the majority of the assets in line with the agreements that had been signed by the couples. The first case is a salutary warning that there are mutualobligations and responsibilities in a marriage; a pre-nup should be carefully drafted and should reflect this. And the second case is a clear indication that you should seek legal advice before signing any pre-nuptial or post-nuptial agreement. Both you and your partner need to have confidence that each of you has entered into the agreement with full knowledge of the consequences: you will have to live with them.
Call Andrew Isaacs today. We’re here for you whether you are looking for legal assistance as you set out on your marriage together, or whether you have come to the end of a relationship and need the help and support of an experienced lawyer to guide you through difficult times.