Some prenups will remain forever gathering dust in a drawer (or a lawyer’s document storage facility) but a proportion of prenuptial agreements are going to be taken out of the drawer after a few years if the marriage sadly doesn’t survive. So what are the key things for clients to take away about implementing a prenup?

1.       A good prenup will cover most scenarios and should be able to withstand challenge on the basis of fairness and the correct procedural steps having been taken (disclosure, independent advice, time for reflection and entering into the agreement no less than 28 days prior to the marriage as best practice. But obviously there are always things which are going to have changed since the marriage took place unless it is a very short one. The longer the marriage, the more likely it is that something will crop up which wasn’t anticipated at the time the agreement was entered into.  

2.       Pressure, even without a catalysing event, can easily erode the agreement itself – see fora recent example the case of PN v SA, a decision of Cobb J all about the pressure being brought to bear on one party.

3.       It’s important therefore to start by doing the due diligence and looking at the disclosure to see how things have changed. Early advice is essential. How you pitch the prenup and whether you are going to say it needs to be strictly adhered to will need to be closely analysed by the legal teams. It may also be necessary to get back a copy of the file of advice that was given at the time.

4.       There will need to be a close examination of needs – how are the parties living? How is this different to what was anticipated at the time? What is the level of expenditure for the family? Are they both still working?

5.       Once this has been done it will be necessary to look at perhaps making an early offer generously interpreting the prenup. If you pitch too harshly at the start then you’ll only end up in court arguing about it.

6.       The generosity could include for example significant provision for the children such as a school fees fund and child maintenance. There have recently been some decisions in relation to the child maintenance which indicate for higher earners the court is assessing this more generously using the statutory formula even over the cap of £156,000 per annum gross eligible income. There is also emphasis on looking at “household” expenditure.

7.       It might be an idea to consider mediation for a discussion about prenup and how to implement it. Keeping everybody on the same page and focus within that process could pay dividends later. Mediation in this instance could be supported by lawyers within the session in what’s called ‘hybrid mediation’.

8.       If this doesn’t work then other out-of-court processes such as a private FDR or arbitration would probably be quicker and cheaper. However, these are voluntary. If all fails then it may be necessary to issue what’s called a “notice to show cause” application. This is an application by which the person enforcing the prenup asks the other one to give reasons why the terms of the prenup should not be upheld.

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If you’d like to have a conversation with one of our expert lawyers about the issues raised in this series, please contact us at mail@burgessmee.com.

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