Your spouse refuses to sign a prenuptial agreement?
Can prenuptial agreements be enforced in law if your spouse refuses to sign a prenuptial agreement? In this scenario, DB v PB, [2016], a Swedish husband and wife were married for 14 years and lived in the UK from 2009. Prior to the marriage, the husband provided the wife with two pre-nuptial agreements which she signed in Canada and the USA. Pursuant to the agreements, each party would retain the assets held in their own names and would have no claim on the other party in the event of divorce. The wife sought legal advice and as a result of that, she would not sign the second document.
What does the court need to consider?
The court held that both parties:
- consensually entered into one or more prenuptial agreements,
- the effect of the agreement(s) was not vitiated by fraud, misrepresentation or undue pressure when the spouses made the agreements.
Also, the English court’s jurisdiction was confined to dealing with the rights in assets arising out of the prenuptial agreements and not the assets acquired within the marriage. However, the prenuptial agreements will have no effect on:
- wife’s maintenance claims,
- children’s maintenance claims, or
- any other benefit to which the wife is statutorily entitled to after divorce.
Are pre-ups legally binding?
At present, pre-nuptial agreements are not legally binding by statute. This means that there is no legislation guiding a pre-nuptial agreement. However, under contract law, disputes regarding prenuptial agreements are guided by the courts in contract law and case law. The courts may only give weight to the prenuptial agreements depending on the circumstances
In Supreme Court Radmacher v Granatino the prenuptial agreements were..
“freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.
It also states that some considerations are made where prenuptial agreement may not be enforceable. As a result of Radmacher v Granatino, the following situations consider fairness in all judgments.
- children before the marriage and during the marriage
- third parties included in the agreement and not consulted
- significant injustice to any the parties involved
- agreements made without legal advice for one or both parties
- one or both parties did not disclose all financial details
- agreement made at short notice, less than 3 weeks, before the marriage
When marriage assets are not enough to cover the maintenance of dependants.
Suppose you and your spouse had agreed to send your children to a fee-paying school but now you are divorced. It may be decided that the well-being of the dependants is significantly compromised if you cease to provide this education provision. Your assets before marriage may be taken into consideration depending on your future commitments to your dependants. This is regardless of whether your spouse refuses to sign a prenuptial agreement.
Other implications affecting prenuptial agreements
- The wife could claim for expenses that match her standard of living before the marriage and lost as a result of the divorce.
- She could also claim for her standard of living during her marriage lost a direct result of her divorce.
- The spouse could claim for sacrifice of career due to stay at home duties in the marriage as long as it was a necessity for the needs of the marriage and not out of personal choice.
- Both the husband and wife are likely to make claims for their children’s well-being. Each party, whoever makes the claim, will have personal liabilities for the maintenance of children.
- The statutory laws regarding asset distribution in divorce proceedings could apply if one party decides not to sign a pre-nuptial agreement.
Is everything split 50:50 in a divorce?
In the UK, the baseline where asset distribution starts are usually 50:50. This applies whether a spouse refuses to sign a prenuptial agreement or not. However, the court considers the equity between spouses and the circumstances in how each spouse accumulated their assets. In essence, the court bases its final award to each spouse on fairness in the distribution rather than equity. This is likely to affect any decisions that the court makes regarding prenuptial agreements during divorce settlements.
Is it time to revisit your prenuptial agreement?
Prenuptial agreements last for the duration of the marriage and ideally, the spouses should revisit these after 10 years. Therefore, it may be time to revisit your pre-nuptial agreement since your marriage. i.e., check its validity and ‘indeed written as a deed.’ This is because your circumstances may have changed for example, you acquire wealth or have started a business. There may even be clauses in the agreement that have expired or no longer enforceable due to changes in the law.
You may be thinking:
- How to nullify a prenup agreement.
- What makes a prenup void?
- Does our prenup agreement still stand?
- What should I include in our prenup agreement?
- My potential spouse refuses to sign a prenuptial agreement.
How to start the process of a prenuptial agreement.
- Each party should use a separate solicitor.
- The solicitors should be able to obtain written consent that each spouse understands the terms of the agreement.
- Each party must demonstrate commitment to the agreement without any vitiating factors or duress.
- The agreement is made at least 21 days before the wedding.
Arrange a test-case for your existing agreements or test case one for your marriage…
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