Having spoken last time about how Prince Harry and Meghan Markle would go about properly entering into a pre-nuptial agreement, this blog will give an overview of how the Court would view such an agreement at the point of separation if there was a dispute about exactly how the agreement should be enforced.
The Court’s role at this point it to decide how much weight should be placed on the agreement, i.e. if it were given a great weight it would be upheld completely. The Supreme Court recently considered this issue and used a ‘three step approach’.
Step One-
The first step is to ask whether there are any circumstances which could give the Court reason to afford the agreement less weight. This includes asking whether the agreement was entered into of the parties’ own free will without any undue influence or pressure, this requirement attempts to ensure that the weaker financial party was not taken advantage of.
Other factors such as lack of material disclosure or proper legal advice can lead the Court to doubt that the agreement was entered into properly. For instance, if Prince Harry were to fail to mention that he was 5th in line to the throne, Meghan would have a good case for saying that she didn’t enter into the agreement with knowledge of how she was limiting her claims.
Step Two-
The Court then considers whether there is any reason that the agreement should be given more weight. This might be particularly relevant in the case of Harry and Meghan, as Meghan is an American Citizen and pre-nuptial agreements are legally binding and more common in the US. This could be used to argue that she intended the agreement to be legally enforceable.
Step Three–
The last step is for the Court to consider whether the situation at the point of divorce means that it would be unfair to uphold the agreement. The Court didn’t give clear guidance on what this would require apart from that the agreement cannot prejudice the reasonable requirements of any children. They also considered that the longer the marriage had been, the more likely it would be that it would be unfair to enforce the agreement to the letter.
For instance, if Harry and Meghan were to enter into a pre-nuptial agreement and then divorce in 20 years’ time, the Court would be likely to view that it may be unfair to hold them both to an agreement that was entered into 20 years prior.
In conclusion, whilst pre-nuptial agreements are still not legally binding in the UK, they can be given a great weight in the event of separation and are the best form of protection for people who wish to keep certain assets distinct from the matrimonial pot. They are often a useful starting point and can reduce the level of acrimony between parties upon divorce. Whilst no one enters into a marriage thinking about the possibility of it ending, ensuring that your hard earned assets are protected as far as possible can give you the peace of mind to enable you to really enjoy your special