Pre-nuptial agreements - what to do if you change your mind

Pass a three-stage test:

• It should have been freely entered into by both of you
• Both of you must have fully understood the implications of what you were signing and
• Now that you are getting divorced, it must be fair.

What is “fair” in a valid pre-nuptial agreement?

If you are the economically weaker party, you will have to think about whether the agreement will leave you with enough money to rehouse yourself to a reasonable standard.  Will you have enough money coming in each month to meet your outgoings?  Crucially, will you be able to meet the needs of any children?

If you are the richer party, you will need to think about whether the agreement will leave you with enough money with which to meet your own needs.  If you’ve lost money over the years, it’s possible that there won’t be enough left over to look after yourself.

If the agreement doesn’t meet both parties’ needs, it won’t be upheld.

But, who needs what in a pre-nup?

It depends on the standard of living enjoyed by the family during the marriage.  If, during the marriage, the family lived in a substantial property with staff, the dependant party’s needs are not going to be met with the provision of a bog-standard three-bed semi.  If that’s what the agreement provides for, it will fail.

On the other hand, if the provision of a super-deluxe country house to the dependant party would leave the richer party with less than half the assets, that may not be fair. In both cases, it is unlikely the pre-nuptial agreement would be seen as valid.

Qualifying pre-nuptial agreements

You will, hopefully, have been advised that:

• The agreement must be contractually valid.
• It must be validly executed as a deed and confirm that the parties understand the rights they are agreeing to relinquish.
• Both parties must take independent advice before entering into the agreement.
• The agreement must be signed at least 28 days prior to the wedding.  (This does not apply to post-nuptial agreements.)

If your agreement didn’t comply with these requirements, it may be vulnerable to being set aside.

In particular, did your partner provide proper financial disclosure?  If not, then you may not have properly understood what you were agreeing to give up.  For example, if you thought your partner had just a couple of million in assets and it turns out they have tens of millions, the agreement may not survive.

Similarly, if the dependant party failed to disclose assets at the time the agreement was signed, that my also undermine its validity.

You will need to consider these issues very carefully with an expert legal adviser.  If it appears that the agreement may not be binding it will, nonetheless, almost certainly be relevant to the way in which your financial claims will be determined on divorce.  The outcome might range from complete disregard of the agreement to it being completely upheld.  The court might uphold parts of it and substitute its own judgment for other parts.

There is a very real prospect that, even if the agreement is rejected, the court will award less than it would have done had there been no agreement at all.

When do I need to seek advice about a pre-nuptial agreement that might not be valid?

• If you think you might be left high and dry by an agreement you may have signed at a time when you couldn’t imagine that the marriage might end, it’s worth talking to an expert.
• If you think the agreement might leave you high and dry because things have changed drastically during the marriage, it’s worth talking to an expert.
• If you think your spouse was economical with the truth when you signed away your rights, it’s worth talking to an expert.
• If you think you were pressured into signing the agreement at a time when you felt vulnerable, it’s worth talking to an expert.
• If you think that you stuck to your side of the agreement, but your spouse didn’t stick to theirs, it’s worth talking to an expert.

DMH Stallard will provide realistic and pragmatic advice:  if we think the agreement is likely to be upheld, we will tell you so.  If we think the court is likely to share your concerns, we will help you to negotiate realistically and reasonably with your partner to achieve a sensible outcome which is fair and meets the needs of you and the children.

If you would like to talk to one of our expert family law solicitors about a situation like this, please email us or call +44(0)3333 231580.