Highest Court upholds post-nuptial agreement

By: Anthony Mullinder

Date: 2 March 2009

Those contemplating marriage or civil partnership, and couples with an existing pre-nuptial agreement will take note of a recent Privy Council decision that, while pre-nuptial agreements continue to be of limited effect, agreements made after a marriage or civil ceremony can be valid and enforceable.  

A recent case has highlighted that, while pre-nuptial agreements are still not legally binding (just a factor the court can take into account when deciding how to apportion assets), post-nuptial agreements are more likely to be enforceable.  

A couple had entered into a pre-nuptial agreement on their wedding day. However, they varied the agreement twice – after they were married, which made the new terms a post-nuptial agreement.  

They divorced a decade later. The husband argued his former wife should get £1.89m under the variations. The wife claimed £5.5m, and argued the variations should be disregarded as she was under unfair pressure when they were made.  

The decision distinguished between pre-nuptial and post nuptial agreements. Post-nuptial agreements were made when the parties had already undertaken the obligations and responsibilities of marriage, so the couple concerned were making a contract regarding their life together. Such an agreement was enforceable provided that its purpose was not to try to oust the court’s jurisdiction. The court therefore took the view that the variations were valid and enforceable as they were made after the marriage.

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