In cases where there is family wealth to protect, the joy of the prospect of one of your children ‘tying the knot’ may be tempered by just a touch of trepidation, particularly if a large settlement of assets will be made on the happy couple.

In such circumstances, the use of a pre-nuptial agreement (‘pre-nup’) is likely to make a great deal of sense. Although such agreements are still rather a grey area legally speaking, in a leading case on the subject the judge most helpfully suggested a number of criteria which would assist the courts in deciding whether a pre-nup would be regarded as enforceable by the court.

The most important of these from the perspective of the parties to a pre-nup are:

  • Does the spouse being asked to sign the pre-nup understand it?
  • Have they been properly advised as to its terms?
  • Was pressure exerted by their spouse to make them sign?
  • Was there full disclosure of the relevant assets?
  • Was pressure exerted by anyone else to make them sign?
  • Was the agreement signed willingly?
  • Did one spouse exploit a dominant position?
  • Was the agreement entered into in the knowledge that there would be a child?
  • Has any unforeseen circumstance arisen which would make enforcing the pre-nup unjust?
  • Does the order preclude the payment of any periodical payment for maintenance of the spouse and if so, would it be unjust to hold the parties to that agreement?
  • Are there grounds for believing that upholding the agreement would be unjust?

For a pre-nup to achieve the desired object, it must be properly drafted and put into place in the correct circumstances.