Pre-Nupital agreements Flashcards
What are Pre-Nups
agreements deciding what will happen upon breakdown- they are one of the circumstances to which he court shall have regard to
What was decided in Radmacher v Granatino
the court will give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances it would not be fair to hold the parties to it
In Radmacher what kind of circumstances would be unfair to hold the parties to an agreement
reasons for not enforcing would include: the standard vitiating factors: duress, fraud, misrepresentation, unconscionable conduct such as undue pressure, and exploitation of a dominant position to secure and unfair advantage
In Radmacher what other factors may the court also consider if relevant
a party’s emotional state, the circumstances of the parties at the time of the agreement, whether the marriage would have gone ahead without an agreement, or without the terms which had been agreed, any foreign element, considerations of fairness, the relevance of any children of the parties
What did Baroness Hale say in her dissent about pre-nups
dissented saying that pre-nuptial contracts should not be enforced. Her reasoning was that this predominantly benefitted the male gender. She expressed concern that courts might lose sight of the objective of a pre-nuptial agreements which was to deny the economically weaker spouse the provision to which would otherwise be entitled.
What has the majority judgement in Rachmacher been argued to be
creates a presumption, and is it, therefore, an impermissible gloss on S 25
What happened in WW v HW
11 year marriage. Wife was wealthy before marriage. Contract provided wife got nothing and husband would get 15% of assets back. Upheld by the court.
What happened in AC v DC
Prenuptial contract made at start of 14 year marriage saying wife would get £0.5 million. Ignored by the court: wife had not taken legal advice.
What happened in Kremen v Agrest
Couple living in London. Husband was extremely wealthy. Signed prenuptial contract giving her a lump sum of £1.5 million. Not enforceable as she hadn’t taken legal advice, was a Russian national who didn’t undertand English law, and husband was a bully who pressured her into signing the agreement. Also most of money accumulated during the marriage. She was awarded more money.
The court may depart to extend deemed necessary in the exercise of discretion to award ancillary relief for fairness
What happened in V v V
Husband had £1 million when married, wife was a student. Prenuptial contract said they keep their own asset if it all goes wrong. Didn’t take into account potential children; agreement was of less significance. Wife needed a house for her and her kids. This was ordered: husband had to buy them a home outright. He was given 1/3 share of equity in that house, to reflect the fact that there was a prenuptial contract.
What happened in SA v PA
Prenuptial contract which provided the couple would keep their own property. This was endorsed by the courts. Wife argued she didn’t understand the contract, but she was a solicitor so the court didn’t believe her.
What happened in Gray v Work
After marriage a term was added which provided the wife could go to court after the marriage had broken down (previously just said wife would get nothing). Wife went to court and was awarded a decent settlement.
It would be unjust to include a term to exclude going to court
Hopkins v Hopkins
Contract said wife would get £1 million out of £6 million of husband’s assets. She realised upon divorce she could get £3 million as half. But court upheld the prenuptial contract.
Luckwell v Limata
the prenup was updated during marriage and the husband understood the consequences. however, the financial difference was so great that despite the fact he knew what he was signed it would not be fair to hold him to that agreement. Would be inconceivable to leave him without any money. Given £1 million to buy himself a house (suitable to have kids staying with him) and pay off his debts. But once the younger child reached 18 he should sell the house and give 50% of the proceeds back to the wife.
