It is commonly thought that pre-nuptial agreements are legally binding, but the lack of clarity in the applicable law means that they can sometimes be successfully challenged.
In a recent case, a judge called for more certainty in the law concerning pre-nuptial agreements after ordering an ex-wife with a fortune valued at £27 million to support her former husband – despite his agreement before they married that he would make no claim against her.
The wife insisted that she would not have entered into the marriage had the husband not signed the agreement promising not to make a claim on her fortune if their relationship ended in divorce. Prior to the agreement, he had exaggerated his own wealth and earnings in a bid to reassure her that he was not marrying her for her money.
During their 11-year marriage, the couple had two children and lived in a £4.5 million home in London. Although the husband was a talented film producer, he had earned relatively little and, due to his wife's inherited wealth, had been able to indulge his artistic whims without having to try too hard to achieve commercial success.
In arguing that he was not bound by the agreement, the husband said that he had 'switched off and stopped listening' after a lawyer informed him that it was unlikely to be legally enforceable. However, in finding that the agreement should be given substantial weight, the judge said that the husband could not escape the legal consequences of having signed it.
Nevertheless, the judge observed that the husband was now 'in the autumn of his working life' and was entitled to maintain a reasonable lifestyle. After his debts were taken into account, he only had capital of about £300,000. Despite the agreement, the wife was obliged to do more than merely keep him from destitution.
Noting that the ex-couple had run up about £1.77 million in legal costs debating the validity of the agreement, the judge directed the wife to provide the husband with a £1.7 million housing fund for life and sufficient capital to give him an income of £50,000 a year, which would be enough to meet his reasonable outgoings.
In a plea for the law to be clarified, the judge said, "If ever there was a paradigm example of a case which demonstrates the need for more certainty in the law of financial remedies and nuptial agreements, this is surely it."