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Prenups….because you’re unlikely to be royalty !

According to sources, Prince Harry declined a prenuptial agreement before he married Meghan Markle, as apparently when it comes to the royals, prenups are simply “not the done thing”. Instead, divorces are ‘amicable’ and negotiations take places behind closed doors, not in the courts.
However, for those of us without blue blood, there is good reason to consider a prunup, especially as they now carry more weight.
Pre-nuptial agreements are not binding in statute. However, there has been a raft of case law recently, the most well known case being Radmacher v Radmacher [2010] UKSC 42, [2010] All ER (D) 186 (Oct) where the Court demonstrated a willingness to attach sufficient weight to such agreements.
In the recently reported case of KA v KA [2018] EWHC 499 (Fam), [2018] All ER (D) 92 (Apr)  the Family Division upheld a pre-nuptial agreement where the wife had argued that she had been subject to duress, but made a needs-based award of £2.95m in excess of the sum provided for in the agreement.  This was well short of the £6m sought by the wife, but was £1.35m more than she would have received under the terms of the agreement.
What does this decision mean?
It reaffirms the guidance that:

  1. a pre-nuptial agreement, freely and fairly entered into, with the benefit of legal advice and financial disclosure and which brings about a fair outcome on divorce, will be upheld;
  2. there will only be a departure from the terms of that agreement when needs require it; and
  3. ‘needs’ are being less generously interpreted as the weight given to pre-nuptial agreements and the intentions behind them increases.

The needs of a party therefore continues to be the trump card, albeit a less generously interpreted trump card. In this case the Judge supported the independence of the parties in signing such an agreement, but found that some of the provisions were ‘unfair’
The wife’s asserted needs were acknowledged, but the Judge felt bound to revise them downwards in light of the finding that the overall agreement was fairly entered into and that both parties had intended to be bound by it.
So, whilst this decision does not radically change the landscape in so far as recent Court decisions are concerned, it does express an even greater accord as to how such cases are to be viewed, and the difficulty for a party who seeks to convince the court that they should not be held to the terms. Is this one step closer to pre-nuptial agreements finding their way into statute?

If you require further information please contact our Family Team on 0800 088 6004.