Another high net worth divorce case has hit the headlines this week. Hopkins v Hopkins  EWHC 812 (Fam) came before the High Court on the issue of post-nuptial agreements. This type of agreement is similar to a pre-nuptial agreement in terms of its purpose but instead of being made in anticipation of marriage, it is made during the marriage. Both types of agreement set out the terms of a financial settlement should the marriage break down in the future. There are specific legal requirements that must be met in order for both types of agreement to be enforceable in the courts. Even if all the requirements are met, the courts have discretion as to whether to enforce the agreement or not. The general rule of thumb is that if you stringently follow the guidelines that have been set down by forgone cases, the terms of the agreement are likely to be enforced by the court.
This case examines the issue of enforceability of a post-nuptial agreement. The wife argued that she was under influence, duress or improper pressure when she signed up. Evidence of duress or undue pressure will render an agreement unenforceable.
The Judge found that whilst it was clear that there was tension between the couple and relations were strained this alone was not evidence of duress. He accepted the husband’s argument that although the marriage was in trouble, he believed that there was hope that it could be saved. It was also found that the wife had entered into the agreement of her own free will and her emotional state did not affect her ability to appreciate the implications of the agreement.
This decision is important as although it does not change the existing legal stance on pre and post-nuptial agreements, it highlights that the courts will give considerable weight to such an agreement and that strong and clear evidence as to why it should not be upheld will have to be provided.
The Law Commission has proposed legal reform in this area to give greater clarity. Until new laws are passed in this area, it is vital that the guidelines on such agreements that have emerged out of previous cases are rigidly adhered to. A solicitor instructed to draw up an agreement for a client will bear the previous case history in mind and advise accordingly. As at the date of this blog, the recognized guidelines for pre and post-nuptial agreements are similar and in general terms are as follows:
- the agreement is freely entered into by both parties;
- both parties need to take independent legal advice;
- both parties understand the terms of the agreement;
- the agreement is fair;
- it is subject to full financial disclosure by both parties.
For pre-nuptial agreements there is an additional requirement that it is entered into at least 21 days before the marriage ceremony.
Although not common practice in the UK, entering into such an agreement is becoming more popular. As solicitors, we endorse the use of pre and post-nuptial agreements provided that they are properly drawn up. In certain circumstances, for example for a second marriage where there may be existing assets and children, we would positively advise clients to consider entering into an agreement.
If you would like advice on pre or post-nuptial agreements, then please call 0161 969 3131 and make an appointment with one of our family lawyers who can give you specialist advice specific to your circumstances.