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Pre-nuptial Agreements

Despite still not being legally binding more couples are entering into premarital agreements and courts are becoming more willing than ever to consider their terms on a divorce. They still, however, have a wide discretion and each case is judged on its own facts and circumstances. Since K v K [2003] and G v G [2004] pre-nups have been considered where each party had taken individual financial advice and provided full financial disclosure. They will also consider whether the possibility of undue influence is a factor and how far in advance of the wedding the agreement was signed. In J v V [2004] no weight at all was given to a pre-nup signed on the day before the wedding, without legal advice and financial disclosure. In 2007 a Court of Appeal case gave premarital agreements more significance than previously where it was said the agreement was ‘a factor of magnetic importance’. The facts of this case were somewhat exceptional and concerned a property developer worth £45 million and his wife who was worth £18 million; most of which had been obtained from three previous divorces! The New Law Journal recently reported a landmark case which potentially could make pre-nups legally binding. The dispute again concerns a multi million pound divorce. Mr. MacLeod wants the Court to enforce and agreement made before the couple married in 1994 along with a subsequent deed of variation which was signed a year before the couple filed for divorce. The wife claims that she did not receive independent legal advice and felt under pressure . The Law Commission intend to publish a draft Bill in 2012 at the earliest so the outcome of this case could provide some clarity on the Court’s view in the meantime.

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