…and why we should not be surprised

In the recently decided case of BN v MA [2013] EWHC 4250 (Fam) a pre-nuptial agreement was found to be binding upon a wife who wanted to be break away from her earlier agreement.

In the judgment Mr Justice Mostyn expressed his surprise that the issue was ever in dispute in the first place.  This incredulity on his part is an indication that the notion of pre-nuptial agreements having a binding effect is now well established since it first emerged in the earlier case of Granatino v Radmacher [2011] 1 AC 534 and was later reasserted in B v S [2012] EWHC 265 (Fam) and others.

In that latter case of B v S – in which Family Law in Partnership’s own Bradley Williams acted for the wife, several determining factors were highlighted to establish when pre-nuptial agreements would be binding.  Some of those considerations are;

• No agreement would be allowed to interfere with the reasonable requirements of a child;
• The autonomy exercised by the couple – that is to say the exercising of their choice to define what will happen upon divorce – should be respected by a court upon any future dispute relating to the agreement.  This is especially so when the agreement specifically deals with real situations relating to the marriage.  It might not be as binding where the agreement tries to deal with `the contingencies of an uncertain future.’;
• No agreement can ignore basic needs.  Basic needs going unmet have been suggested to be measured by `Real destitution’ as opposed to a mere downturn in one’s previously enjoyed levels of comfort.

Even where there are allegations of non-disclosure or a lack of legal advice, these are only likely to be grounds for escaping the commitments previously entered into if the lacking elements are `material’ or relevant to the issues at stake.  It appears that as long as there has been `a sufficiency of disclosure to enable a free decision to be made.’ then that is likely to be enough.

In this case, the marriage lasted only 15 months.

There were no grounds for setting aside the agreement that had previously been entered into by the husband and wife.  The wife’s representatives were unable to convince the judge that there was material non-disclosure.

As a result the judge ordered that the pre-nuptial agreement would be binding and that there would be no full trial of the matters being alleged.

So we see that pre-nuptial agreements have won the day once again.  That in itself is perhaps not newsworthy.  What is, however, is the strident manner in which an attempt to escape the commitments previously entered into by the wife, have been dismissed by the courts.

Mr Justice Moylan concludes his judgment with these warnings;

“I do take the view that the wife’s claim here is extremely speculative…borderline irresponsible”

Be warned all those seeking to set aside properly drafted and properly entered into agreements.

London Divorce solicitor, Bradley Williams, is one of the leading authorities on pre-nuptial agreements and has acted in the reported case of B v S [2012] EWHC 265 (Fam) and also a partner here at Family Law in Partnership in Covent Garden.

If you have questions about preparing a pre-nuptial agreement, or are concerned about whether your pre-nuptial agreement will be binding then get in touch with us here on 020 7420 5000 or email us at hello@flip.co.uk