A couple embarking on a second marriage for both had an agreement drawn up by a foreign notary five days before their wedding. Neither took independent advice. After the breakdown of the marriage, the wife wanted to rely on the pre-nuptial agreement. The husband, having gone bankrupt said the agreement should not be upheld against him as it would severely limit the financial support he could receive from his former wife. The husband and the wife each had a different understanding about what they were signing and what the prenuptial agreement meant. The husband said the entire thing came as a surprise to him.
The judge said the agreement was invalid, adding:
“In my judgment, there is no value in the prenuptial agreement. There was no formal process of disclosure, there was no advice given to either party, other than by the notary who prepared the document and at five days before the ceremony.”
The Judge went on to make clear that the agreement would not meet the husband’s needs anyway.
The Supreme Court said that three points were needed for a prenuptial agreement to be upheld:
- The agreement has to be freely entered into by each party. The closer to the ceremony, the more likely there was pressure to sign which could be seen as duress. My advice is that you need to have a prenuptial agreement signed and done at least a month before the ceremony.
- Both parties have to understand what the agreement says and what the effect of it will be
- It must be fair to hold the parties to their agreement – a bit tricky where the husband was made bankrupt.
By the time of the divorce, the husband and wife had been married for around ten years. They could have updated the prenuptial agreement and that would have possibly solved the problems with it. Often, couples think that a prenuptial agreement is done and put in the drawer but it is best to treat it as a living document and to review it once every five years at least or when some major happens – like children, an inheritance and so on.
So, in practical terms:
- Get an prenuptial agreement done and dusted at least one month before the wedding
- Don’t treat it as something done and to go in a drawer – review every 5 years or a major event happening
- Understand that the longer you are married, the less relevant the prenuptial agreement will become as your finances become interwoven.
If you need help with having an agreement drawn up, contact me.