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Courts taking note of pre-nups
Published May 2008
Pre-nuptial agreements have long been thought to be worth a lot less than the assets they are designed to protect and only slightly more than the paper they are written on, but their status is changing, according to a Midlands lawyer.
A series of rulings in recent years means that a well-structured and fair “pre-nup” will stand a good chance of being upheld in court, according to Julia Bond, an associate in the family law division of mfg Solicitors.
She says the agreements will be given particular weight when they apply to short marriages between people who came into the relationship with existing assets.
“The recent Crossley case involving a wealthy couple who were only married for a matter of months really does highlight the value of a well-structured and fair pre-nuptial agreement,” she said.
“Both parties had substantial personal fortunes before they married and they signed a pre-nuptial agreement that would protect their pre-acquired wealth in the event of a divorce. The marriage did break down and Mrs Crossley sought to have the pre-nuptial agreement set aside as she said Mr Crossley had not disclosed all his assets.
“The Appeal Court took a different view, saying that the agreement had been drawn up fairly, professionally and with appropriate legal advice. Indeed, the judge described the Crossleys’ pre-nuptial agreement as a ‘factor of magnetic importance’.”
Mrs Crossley lost the appeal and Mr Crossley was able to keep his fortune, valued at around £45 million.
Julia Bond says the key to enjoying the security offered by a pre-nuptial agreement is to ensure that it can be proved to be fair to both sides.
“There has to be clear evidence that both parties intended to abide by the agreement, that they received good and independent legal advice, that there was adequate financial disclosure and that there is parity of negotiating power, especially in short marriages where there are pre-acquired assets,” she said.
“As more people choose to re-marry in later life, the need for robust and defendable pre-nuptial agreements is becoming more pressing. The Appeal Court has sent a clear message that if the agreement meets the test, its provisions will be upheld.”
