Do Not Sign It Unless You Intend to Be Bound By Its Terms
Published: 20/04/2023 22:43
This is often the wording we see on the front of all well drafted pre-nuptial agreements.
So why do clients sign them if they intend to try wriggle out of them at the time of a divorce?
In the case of MN v AN  EWHC 613 (Fam) *the wife argued that the agreement was reached 5 years prior to the decision of the Supreme Court in the case of Radmacher v Granatino*  UKSC 42, it was vitiated by undue pressure, and it did not meet her needs. Spoiler – she failed.
Dealing with each of these points in turn:
Firstly, her attempt to argue that the law predated Radmacher, and therefore she should not be bound by it, failed. Mr Justice Moor reflected that it could not be right as Mr Granatino would have not been held to the agreement that he signed. The wife went further to say that she ONLY thought that she would be bound by the agreement if the law changed. An extract was included in the judgment which recited a letter from the wife’s ‘well known “divorce” solicitors’ at the time of entering into the agreement whereby they advised the wife:
'the current position in English law is that pre-nuptial agreements are not binding upon the Court when making an Order for division of finances on divorce. Therefore, although the document may have some influence in the Court deciding on the allocation of assets on any future divorce, I could not say it would definitely be binding. However, you need to proceed on the basis that it would be upheld. It is very important that you are aware of this from the outset.'
The second point the wife attempted to run was one of undue pressure on the basis that the marriage would not go ahead if the agreement was not signed. Unsurprisingly, this failed too. There was also an argument mounted about a ‘mother of all arguments’, but there was a clear cooling off period between March and June before the agreement was signed. Mr Justice Moor accepted that whilst the wife was under pressure, it was not undue pressure and therefore not sufficient to vitiate the agreement.
The wife’s final argument – needs – failed too. Mr Justice Moor records that he considered whether the agreement for the wife and children was outside the bracket of reasonable awards that the court might have made so as to make it unfair. He concluded that it was not and noted that the assets brought to the marriage were entirely non-matrimonial.
Mr Justice Moor applied a two stage test:
1 – Are there any circumstances surrounding the making of the agreement which should eliminate or reduce the weight to be attached to the agreement?
2 – Does the agreement operate fairly now having regard to all s25 factors?
You already know from my spoiler the answers to these questions were as follows:
1 – No
2 – Yes
In my view, this is perhaps one of the biggest tests of the principles set out in Radmacher since the case was decided in 2010 in respect of pre-nuptial agreements. It is clear these principles have been upheld in this case.
We are helpfully reminded in this judgment that Supreme Court held at paragraph  in Radmacher that:
'The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.'
The agreement in MN v AN included full and frank disclosure, recited that each party had received separate and independent legal advice and that it was freely entered into l. It also stated that the parties intended it 'shall be binding upon them'.
We therefore need to keep repeating to our clients
DO NOT SIGN IT UNLESS YOU INTEND TO BE BOUND BY ITS TERMS!!