Pre-Nuptial Agreements

It was thought, until recently that pre-nuptial agreements played no part in matrimonial proceedings in this country. However a recent case K v K [2003] 1 FLR 120 has changed this perception.

In K-v-K the parties married in March 2000. The wife was pregnant at the time of the marriage. The wife was 28 and had assets of £1 million. The Husband was 39 with assets of £25 million. The wife did not want to be a single mother so decided to terminate the pregnancy if the parties were not going to marry. The Husband did not agree with termination but did not want to marry until the baby was born. The parties became engaged with plans to marry after the child was born. The wife’s family wanted their daughter to be married before the baby was born and exerted pressure on the parties to marry. The wife’s father suggested a pre-nuptial agreement as he hoped this would make the husband marry the wife. The agreement was signed the day before the parties married. The parties had a son 4 months into the marriage.

The pre-nuptial agreement in K-v-K provided that if the marriage ended within five years the wife would receive £100,000 compounded by 10% per year for every year the parties remained married. The Husband also intended to make reasonable financial provision for the child which included provision for a home for both the child and the wife.

Rodger Hayward Smith QC concluded that the agreement should be considered in the divorce proceedings and that the pre-nuptial agreement was enforceable.
In making his decision Rodger Hayward Smith QC proposed himself 15 questions
which has provided a framework for the validity of prenuptial agreements. The first 4 questions are as follows:-

1. Did the wife understand the agreement?
2. Was the wife properly advised as to the terms of the agreement?
3. Did the husband put the wife under any undue pressure to sign.?
4. Was there full disclosure?

Pre-nuptial agreements will be considered on a case by case basis and the above case must be read with caution and in relation to its own facts. It appears that it is worth having a pre-nuptial agreement drafted as the document may now be considered due to the decision in K-v-K The case opens an interesting debate one which will continue for some time.