Pre-nuptial agreements: Mean spirited? Or just a reasonable step to protect your assets?

Pre-Nuptial Agreements have been in the news a great deal in recent years.  A recent case involved Kevin Brack; a racing driver who now test drives for Maclaren and his wife, Anita. Both of whom are Swedish.

The couple married in 2000 having already lived together for a few years.  Mr Brack insisted that his soon-to-be wife signed a Pre-Nuptial Agreement, which he produced to her whilst on a romantic holiday in Niagara Falls.  The agreement meant that Mrs Brack would only receive £500,000 if the parties separated.

When they separated in 2015, Mr Brack’s wealth was £11.4million.  Mrs Brack applied to the court for an equal division of the parties’ assets stating that the Pre-Nuptial Agreement was unfair.

At first instance, the Judge agreed that the Pre-Nuptial Agreement was not fair. Particularly taking into account the length of the marriage and the fact that the parties had two children.  He described Mr Brack as ‘mean spirited’.  In the end, he did  however, uphold the Pre-Nuptial Agreement because he felt that Mrs Brack had full knowledge of what the Pre-Nuptial Agreement meant when she signed it.

Since that hearing, email evidence has been put forward which confirmed that Mrs Brack did not understand what she was signing, and that Mr Brack told her that it wouldn’t govern the actual financial provision that he would make for her.

Mrs Brack appealed, and the Court of Appeal allowed that appeal.  They agreed that the Pre-Nuptial Agreement was unfair and ordered for the case to be reheard.  The Judgment hasn’t yet been released so the reason for stating it to be unfair has not been explained.

Pre-Nuptial Agreements in England and Wales...

Pre-Nuptial Agreements are not binding in a court in England and Wales. Although, the courts will take them into account as a factor to be considered in their decision.

One of the matters that the courts will take into account to decide whether or not a Pre-Nuptial Agreement should be upheld, is whether or not it is fair and the court retains a discretion as to what amounts to a fair settlement.

If the court feels it is not fair, they do have the power to change a Pre-Nuptial Agreement. In the cases where the courts have done this, a spouse will often still not get as much as they may have done if the Pre-Nuptial Agreement was not signed.

So, when making a Pre-Nuptial Agreement, it is important to consider fairness and take into account the needs of the financially weaker spouse.  This should also be reviewed on a regular basis. Particularly if there are changes in circumstances, such as the parties having children.

If you would like further information or advice regarding a Pre-Nuptial Agreement then please contact our family department.