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Can a pre-nup be overturned?
For lots of couples the use of a prenuptial agreement (commonly referred to as a pre-nup) is there to protect assets and interests, should things go wrong in the marriage.
In the past, they have very much been thought of as the domain of the rich and famous but with blended families becoming more common, they too are becoming much more common.
The recent news that billionaire musician and producer Dr Dre and his wife Nicole Young are divorcing, has bought the issues of pre-ups into sharp focus and the thornier issue of ‘Can a pre-nup be overturned?’
The background to the case
Dr Dre and his wife, Nicola Young, entered into a prenup prior to their marriage in 1996. The validity of the prenup is now in focus as paperwork seems to show that Dr Dre repeatedly ripped up copies of the pre-nup throughout their marriage, leading his wife to believe that the pre-nup was no longer valid. Young is also citing that she felt threatened and intimidated into signing the agreement shortly before their marriage.
Dr Dre is reportedly worth near to 1 billion dollars so the financial fall out from the argument of pre-nup v no pre-nup is extremely significant. Dr Dre has since confirmed the existence of the pre-nup agreement requesting that any settlement is made in accordance with it.
What is the Pre Nup situation here in the UK?
The UK has been slow to recognise the importance and validity of pre-nups and it was the landmark case of Radmacher v Granatino that highlighted this.
Radmacher and Granatino had entered into a pre-nup prior to their marriage agreeing that neither party would benefit from the property of the other, on divorce.
When the couple did divorce, the pre-nup was overturned by the judge, who awarded the husband a much larger settlement than was recorded in the pre-nup because, in her view, its importance had been lessened as the husband had not received appropriate legal advice before signing it and there were now children to take into account.
The wife appealed this decision and won. The husband took the case to the Supreme Court but the decision was upheld and he was unsuccessful. The judge ruled that pre-nups have ‘magnetic importance’ and appropriate weight should be given to the agreement IF entered freely entered into by both parties and who fully appreciate the implications of the agreement and potential outcomes.
Can a pre-nup be overturned in the UK, even in light of the matter of Radmacher v Granatino?
The keyword in the above case review is IF the agreement has been entered into freely and knowledgeably. If it can be proved that this is not the case, then there are grounds for the agreement to be overturned and it will not be considered binding if:
- Any subsequent children from the marriage are not provided for.
- The agreement was signed under pressure or there was undue influence or if one party did not have the legal capacity to enter into the pre-nup
- It can be proven that one party did not fully understand what they were signing or what the implications to them would be if it was used.
What else can I do to ensure a pre-nup is given maximum weight?
To limit the opportunities for the agreement to be reviewed or overturned it is advised that any prenuptial agreement be drawn up and entered into well in advance of the actual wedding to allow time for review, discussion and negotiation if appropriate.
Financial disclosure is also a prerequisite. Either party found to be failing to disclose their financial situation will mean the agreement is unlikely to be given maximum weight.
Also evidence of the parties having a full understanding of the financial position of the other party will help an agreement remain watertight.
If all of the above can be proven then a pre-up, whilst still not technically legally binding, will stand up to scrutiny by a UK court and should be given decisive weight.
Who should get a pre- or postnuptial agreement?
If you are engaged to be married or about to enter into a Civil Partnership and wish to have certainty regarding your financial matters in the event of your marriage/relationship breaking down, then you should get a pre-nuptial agreement.
If you have already got married/entered a Civil Partnership and you would like to make arrangements to create certainty regarding your financial situation in the unfortunate event your marriage/relationship breaks down, you should get a post-nuptial agreement.
If you have children from a previous marriage that you wish to financially safeguard then, again, you should look to obtain a nuptial agreement.
Finally, if you have significantly more wealth than your partner then, again, you may wish to enter into a nuptial agreement.
It's always sensible to have a safety net in place which sets out clearly what should happen to your finances, in the event your relationship breaks down.
What happens during a divorce if the couple has a prenuptial agreement?
The court will consider whether to give effect to a prenuptial agreement if it is freely entered into by each party with a full appreciation of its implications.
The key question is fairness. To establish this, the court will query whether the agreement was entered into freely and if the parties were aware of the implications of the agreement. It must be fair to hold the parties to the agreement in the circumstances prevailing, this will include whether any children have been born.
What should someone do if they’re asked to sign a prenuptial agreement?
Always take legal advice. Find out more about our services and how we can help by visiting our pre & post-nup page.
It is key that each party seeks separate legal advice.
How we can help you with a pre-nup
Pre-nups are becoming much more common so to ensure that they work for you and your family careful and considered advice is key.
For further information, please contact Stephanie Kyriacou, another member of the family team in your local office or fill out our enquiry form, and a member of our family law team will get in touch with you shortly.
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Stephanie deals with all aspects of relationship breakdown to include divorce, children matters and resolving the financial issues upon separation.
