November 7, 2022

Why it’s vital that pre-nups and post-nups are set up fairly

ones Myers on how a recent Court ruling – which rejected a post-nup because its terms were unfair due to the husband’s vulnerability when signing it – reenforces the importance of setting up such contracts fairly.

Why it’s vital that pre-nups and post-nups are set up fairly

A recent Court ruling which rejected a post-nup because its terms were unfair due to the husband’s vulnerability when signing it – reinforces the importance of setting up such contracts fairly.    

After being formally diagnosed with Parkinson’s disease for three years, the husband, against legal advice, signed the agreement which would give his wife 80% of their £5m joint marital assets should the relationship break down.

When the marriage collapsed six years later, he was unable to work and did not possess the mental capacity to conduct divorce proceedings. 

Ruling that the post-nup was financially disadvantageous to the husband who was a vulnerable person when signing, Judge Edward Hess said his wife had taken advantage of his vulnerable situation to gain a substantial financial advantage.

The Judge rejected the agreement because he said that enforcing it risked leaving the husband “In a predicament of real need, possibly leaving him in inadequate accommodation and/or running the risk that he would have no option other than to do the one thing he wants to avoid – going into a care home.”

We have previously stressed how vital it is that such contracts meet the correct requirements and are agreed after full consideration of the following:

  • The resources available to the couple, both capital and income and existing or reasonably foreseeable.
  • The financial needs of each person, considering the needs of dependent children and any disabilities.
  • The duration of the marriage and the ages of the couple.
  • In exceptional case, the conduct of one or both of the couple.
  • The standard of living enjoyed.
  • Any benefit either will lose as a result of the divorce.
  • The contributions of each to the marriage (both financial and non-financial).

A Judge will want to be reassured that a pre-nup or post-nup is fairandthat the financially weaker partner understood it.

The couple must have exchanged details of their respective financial situations – and neither should have beenunder duress when they signed it. 

It is also important that they both have independently taken legal advice. With pre-nups, the contract should be signed at least 21 days before the wedding and courts may ignore or vary contracts drawn up in a rush and under pressure.

Sadly, arguments concerning money can bring out the worst in people and we advise couples to seek advice from experienced family lawyers like Jones Myers.

Setting up these contracts in the correct manner provides reassurance and peace of mind. It also avoids the potential distress, acrimony, and expense of resolving financial matters later if the marriage falls apart.    

For information on pre-nups, post-nups or any aspect of family law, call us at Leeds on 0113 246 0055, at Harrogate on 01423 276104, or at York on 01904 202550. Visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce

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