Nuptial Agreements – To What Extent Can They Be Challenged?

Whilst prenuptial agreements are not formally binding in England and Wales, the Family Law courts have regarded them as persuasive and even decisive.

The court in the landmark case of Radmacher (formerly Granatino) v Granatino [2010] UKSC 42 set out that, whilst not strictly binding in the event of a divorce, the terms of the agreement may now be decisive in the event of a dispute that the court deals with so long as they were entered into by both parties freely and with full appreciation of their consequences, and unless the effect of the agreement would be unfair.

Several factors may impact whether the court upholds a nuptial agreement.

Below are some of the instances when a nuptial agreement may be challenged during divorce or dissolution proceedings:

1. If the nuptial agreement was obtained under fraudulent circumstances or against a party's will. Any nuptial agreement may be invalidated in circumstances where one party was forced to sign under duress or if it was signed when one party would not be considered to have the capacity to do so.
2. If the nuptial agreement was constructed in such a way, its outcome would be unfair to the other party.
3. If, after the creation of the nuptial agreement, the facts and circumstances have significantly changed. Examples of relevant changes in circumstances include:

• • The birth of any children to the family
  • A loss of employment
  • If your spouse started a profitable new business during your marriage
  • If your spouse came into a windfall or
  • By other means, accumulated additional property or assets.

Provided the terms of the agreement are substantially fair, and the needs of the parties and children can be met, the court is increasingly willing to give weight to nuptial agreements.

The court will deal with challenges to nuptial agreements on a case-by-case basis and consider the circumstances as a whole.