Pre And Post-Nups - Signing On The Dotted Line

Pre-nuptial and post-nuptial agreements strive to provide certainty, predictability and clarity: they are an attempt by (usually) the wealthier spouse to limit the other's potential financial claims in the future and to avoid a messy and expensive scrap over money on the breakdown of a marriage. In some cases the objective is achieved, but in others, it can result in costly and bitterly fought litigation about whether or not the agreement should be upheld. 2015 saw Nicholas Cusworth QC (sitting as a Deputy High Court Judge) hear two cases involving nuptial agreements: Hopkins v Hopkins [2015] EWHC 812 (Fam) and WW v HW [2015] EWHC 1844 (Fam). In both cases, attempts to subvert the agreements failed.

The facts

In Hopkins, the parties signed a post-nuptial agreement in 2011 shortly before the eventual breakdown of their marriage and just months after the Supreme Court's landmark decision about nuptial agreements: Radmacher v Granatino [2010] UKSC 42 ('R v G'). Both parties' solicitors had advised their respective clients not to enter into the agreement (and required them to sign a disclaimer when they did). When the marriage ended, Mrs Hopkins started financial proceedings, claiming the agreement should not be upheld because, she asserted, it was vitiated by duress or (alternatively) her husband's conduct had been unconscionable (for example, she said he had exerted undue pressure). The judge did not accept her evidence. The case of WW v HW featured a pre-nuptial agreement signed in 2002, a number of years before R v G was decided. Mr Cusworth QC's judgment began by observing that although under the terms of that agreement each of them agreed not to make a claim against the other, they had nevertheless managed to run up combined legal costs in court proceedings of c£1.77m. He pronounced 'if ever there were 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.' The husband in this case was the financially weaker party, and his attempts to wriggle out of the terms of the agreement were dismissed emphatically by the judge, who was critical of his lack of candour and found him to be an unreliable witness.

Ignorance is no defence

As Mr Granatino learned at his expense in 2011, having the opportunity to obtain legal advice is enough. In both Hopkins and WW v HW, the individual trying to undermine the agreement (ie Mrs Hopkins and Mr HW) argued that...