Pre-nuptial agreements are not strictly enforced by the courts in England and Wales as they are in the United States. However, courts do give them an increasing degree of weight and it is widely predicted that the law will be changed to make pre-nuptial agreements strictly enforceable.

At the moment, courts still retain their discretion to ignore pre-nuptial agreements in whole or in part, however they are now given a much greater degree of weight than they have been given in the past.

In a recent case, known as M v M (Pre-nuptial Agreement) [2002] 1 FLR 654, the husband and wife had made a pre-nuptial agreement which was signed in Canada. The husband had assets of around £7.5 million and their pre-nuptial agreement only allowed for the wife to receive £275,000 of those assets. The couple was married for five years and then got divorced. The court decided that it would be unfair to award the wife only £275,000 as stated in the agreement but that it would also be unfair to the husband to ignore the agreement. The wife was therefore awarded £875,000. This is substantially less than she would have been awarded if a pre-nuptial agreement had not been made. In the absence of a pre-nuptial agreement she might have expected to receive a third of the total assets.

In another case, K v K (Ancillary Relief: Pre-nuptial Agreement) [2003] 1 FLR 120, a different judge ruled that the wife should be bound by the pre-nuptial agreement because she signed it knowing of the consequences and because the marriage had been a very short one where she contributed nothing to the husband's assets of £25 million. She was therefore only awarded £120,000 in accordance with the agreement in addition to a sum of £15,000 for child maintainance. Again, this is only a fraction of what she would have recieved had there not been such an agreement.

Fawcett & Pattni Solicitors at Links