The Court seems to have inconsistent views in respect of financial matters upon divorce and a pre-nuptial agreement is there to try and protect an individual’s assets and personal wealth upon marriage.
One common question surround pre-nuptial agreements is ‘are they legally enforceable in UK Courts?’ Whilst the answer to the question is no, case law does show that judges will give pre-nuptial agreements substantial weight. However, they will only be given consideration if when the agreement was entered into certain steps were followed and of course that the actual agreement is signed.
It may be the case that after creating a pre-nuptial agreement spouses decide to file for divorce and at this point the validity of the pre-nuptial agreement can be challenged depending upon the circumstances surrounding the parties.
There are three main ways in which a pre-nuptial agreement can be challenged during divorce proceedings and these are: –
- If the pre-nuptial agreement was obtained under fraudulent circumstances, against a party’s will and without proper legal representation for both parties.
- If the pre-nuptial agreement was constructed in such a way that it would be rendered unfair in the benefit to either party.
- If after the creation of the pre-nuptial agreement the facts and circumstances of each individual case have significantly changed.
Generally, the law of contract applies to pre-nuptial agreements in order to determine their validity and if the agreement does not follow the prescribed format the agreement will be invalid. Any pre-nuptial agreement can also be invalid if one party was forced to sign under duress or if the contract was signed when one party was not in the mental state to do so.
A prenuptial agreement has to be entered into by the will of both parties and all assets and liabilities must be disclosed in order for the agreement to be valid. Perhaps the most common ground to challenge a pre-nuptial agreement on is if the agreement itself is unfair in that it benefits one party more than another. If the agreement is not reasonable then the Court will not uphold it as they will view the agreement as unconscionable. The issue here is that there is no definitive answer; each case will be dealt with on a case by case basis dependent upon each individuals circumstance.
Similarly, if financial circumstances considerably alter after the agreement was entered into then this may exempt a party from terms within the pre-nuptial agreement. A significant change could come from a new business or from accumulating new properties or assets.
The burden of proof however lies with the person who wishes to declare the agreement as invalid or challenge it in some way.
Should it be deemed by the Courts that either the agreement was fraudulent, was made without both parties having legal representation, be unfair to one party or if circumstances have changed then the pre-nuptial agreement and its clauses will be challenged. Effectively, the Court would have the authority to suggest that the pre-nuptial agreement does not stand and normal procedures surrounding divorce and financial matters will ensue.
Should you wish to contest or challenge a pre-nuptial agreement in any way then you will need legal advice and Laker Legal Solicitors are able to assist with any aspect of the challenge.
All information is correct on the date of posting.