When is a pre-nuptial agreement not a pre-nuptial agreement?

Year Published: 2014

Despite the recent report of the Law Commission entitled ‘Matrimonial Property Needs and Agreements’ in which it was recommended that certain qualifying pre-nuptial agreements were to become legally binding, Mr Justice Holman has set aside a pre-nuptial agreement signed by Victoria Luckwell and Francesco Limata.

The judge set aside the agreement even though he found that the husband had agreed he would not make any claim during or after the marriage in relation to the wife’s property or gifts that had been made to her by her ‘wealthy family’ and that the marriage would not have taken place unless there had been a pre-nuptial agreement.

The main reason why the agreement was set aside was, in the words of Mr Justice Holman, ‘’It is unlikely to be fair that one party is left in a predicament of real need while the other has a sufficiency or more”. The judge went on to say “if all the facts are the same but the gender is reversed, it is inconceivable that the agreements would outweigh making a substantial award to the wife, even if the children were primarily living with the husband and only intermittently staying with her”. The judge awarded a sum of £900,000 to enable the husband to buy a house, to be sold when the youngest child reached the age of 22. The proceeds would then be split 45% to the wife and 55% to the husband.

The judgement reinforces the importance of parties seeking legal advice when considering entering a pre-nuptial agreement. The report of the Law Commission set out requirements which would have to be satisfied for a pre-nuptial agreement to be upheld, one of those being that both parties should have independent legal advice.

A pre-nuptial agreement may be seen by some as an insurance policy against a husband, or indeed a wife, making a claim over their assets in the event of things going wrong but if agreements are drafted incorrectly and are seen to be unfair, it is unlikely that they will be upheld in court.

If you require any further advice regarding this article or any other issues in relation to the breakdown of your marriage please contact our Family Law team on 0161 475 7676.

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