The Eric Whitehead Partnership

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Pre-Nuptial Agreements

Unlike in America, Pre-Nuptial Agreements (Agreements setting out what will happen to the parties’ assets if they subsequently divorce), so long favoured by Hollywood stars seeking to protect their wealth, have not, until recently, been recognised by the Courts on this side of the Atlantic. There is a very simple reason for this, in that the English Courts have been reluctant to acknowledge the existence of a document that effectively undermines the sanctity of marriage.

However, a recent High Court case changed all this. For the first time, the Courts provided guidance upon the way in which Pre-Nuptial Agreements (“PNAs”) are to be viewed by the English Courts.

The Courts will, subject to the interests of any children of the parties, consider enforcing a PNA as long as a number of certain requirements have been complied with, including the following:-

  1. that both parties understood the PNA;
  2. that both parties received independent legal advice upon the PNA and its terms and conditions
  3. that both parties were not pressurised or coerced into signing the PNA; and
  4. that the PNA was entered into after both parties had given full financial disclosure to each other.

In consequence, PNAs will undoubtedly become a more common aspect of English divorce proceedings and will no longer only be the preserve of the “rich and famous”.

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