Whilst pre-nuptial agreements have been commonplace in the USA for many years, they have not been used in the UK for the simple reason that the courts have refused to enforce them.
However, a recent case has caused a reawakening of interest in pre-nuptial agreements, when a court decided to uphold a contract entered into by a couple who separated after less than two years of marriage and then divorced.
The wife claimed £1.7m from the husband, despite having agreed in the pre-nuptial agreement to settle for less.
In this case, both the husband and wife had the benefit of legal advice prior to the wedding, which was entered into by the husband with some evidence of lack of enthusiasm. However, the wife was under no pressure to agree to the terms of the settlement, so the pre-nuptial arrangement - which gave her the use of a £1.2m house until their child came of age, a lump sum of £120,000 and an annual payment of £15,000 - was enforced by the court.
More recently, a wife's agreement to limit her demands on the fortune of her husband if the marriage broke down was thrown out by the judge, who considered that she had been put under pressure into making the agreement. However, in another case, a thrice-divorced woman who signed a 'pre-nup' in which she agreed to claim nothing from her husband in the event of a divorce was forced to withdraw her claim when the court ruled that the pre-nup would have to be considered.
Most European countries recognise pre-nuptial agreements and Resolution - First for Family Law (formerly the Solicitors Family Law Association) has called on the Government to enact legislation in the UK to make such agreements enforceable in the UK courts.The possibility of making pre-nuptial agreements enforceable is under discussion in Governmental and legal circles. It is likely that in the medium-term the position may change.
