I came across some words of wisdom from Mr Justice Holman in his judgment in the case of Luckwell v Limata earlier this year. It's a lengthy read and likely to aid insomnia, but towards the end he talks about how the courts should decide whether the terms of a pre-nuptial or post-nuptial agreement are fair. He says that, provided the agreement is entered into properly (and you could write a long blog on that issue I can tell you!), and depending on the facts of each individual case (a comment every English judge seems to say in every divorce case!) the following guidance should be borne in mind -
"i) A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children;
ii) Respect for autonomy, including a decision as to the manner in which their financial affairs should be regulated, may be particularly relevant where the agreement addresses the existing circumstances and not merely the contingencies of an uncertain future;
iii) There is nothing inherently unfair in an agreement making provision dealing with existing non-marital property including anticipated future receipts, and there may be good objective justifications for it, such as obligations towards family members;
iv) The longer the marriage has lasted the more likely it is that events have rendered what might have seemed fair at the time of the making of the agreement unfair now, particularly if the position is not as envisaged;
v) It is unlikely to be fair that one party is left in a predicament of real need while the other has 'a sufficiency or more';
vi) Where each party is able to meet his or her needs, fairness may well not require a departure from the agreement."
These the judge had agreed in advance with the barristers in the case (always a clever move to get your work checked by boffins), but then he weighed in with some more thoughts of his own. He said
"The court must be scrupulous to avoid gender discrimination or gender bias. Of course gender may, and often does, impact heavily on outcome. If in fact a wife, in her role as mother, is the primary carer for the children, then her need for secure and suitable accommodation may outweigh that of the husband. If a wife, due to her commitments to caring for the children, is less able to work than is the husband, than that is likely to impact upon maintenance needs. So, too, if it is a fact of a case that a wife has lower earning capacity because of gender discrimination in the relevant employment markets. But there must be no discrimination or bias based on gender alone, nor on any stereo–typical view that a wife may be dependent upon her husband but not vice versa."
Gender discrimination and gender bias. Two issues to pay attention to when writing and scrutinising nuptial agreements.
Alex Davies leads the family law team at Cripps. You can find his website profile here or contact him on email@example.com or +(44) 1892 506326.