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Pre-nuptials & Post-nuptials| Be careful what you agree to….

Posted on April 29, 2015

Pre-nuptial agreements, post-nuptial agreements and separation agreements are becoming increasingly common. In some cases, when one party tries to ‘get out’ of an agreement made, the court can hold them to it.

Mrs Hopkins found this out the hard way in a recent decision. In brief, Mrs Hopkins signed a post-nuptial agreement with her husband as they were separating. The agreement set out how the financial matters should be settled between them, and both husband and wife had solicitors. The wife signed the agreement against the advice of both her solicitor and the barrister consulted by her solicitor. The agreement gave the wife far less than she was advised she would receive if a court were to be asked to make a decision. She was informed that if she signed it, the agreement would be watertight and she would be held to it. However she went ahead and signed it. Approximately 16 months later, the wife decided that she would challenge the agreement. She made her application to the court 2 months later. Unsurprisingly, the husband said the wife made the agreement, it had been implemented and she should be held to it. The wife said she was pressured into signing it and that the agreement itself being, so unfair to her, should be set to one side.

The judge decided that the agreement was freely entered into by both parties, with full legal advice. The agreement achieved what the wife wanted at the time. She understood the terms of the agreement and understood that it would be watertight if she signed it. She then also left it for 16 months before trying to challenge the agreement. She did also receive considerable money under the terms of the agreement, just not as much as the court might have ordered. The judge also said, taking all of these points into account, it would be unfair to the husband to allow the wife to disregard the agreement.

What do we learn from this case? Agreements made between husband and wife are becoming increasingly important. We have already seen significant movement in this area of law, expanding the criteria and circumstances in which parties will be held to the agreements they make, even if they might have got a better deal by asking the court to decide what should happen. Agreements to arbitrate are another extension of this. As the court system becomes stretched, carefully drafted agreements or agreeing to arbitrate offer families another way forward to resolve the financial distribution. Be careful what you agree to as you can’t just press rewind.

Find out more information on pre-nuptials and post-nuptials.

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