Prenuptial Agreements: how to ensure they are binding

Family partner Aysen Soyer considers this recent decision of Mostyn J on the enforceability of a prenuptial agreement which was entered into in a foreign jurisdiction in circumstances where the agreement itself was not then enforceable in that country. The case concerned an heiress of the Avon Products business who married a penniless hotel concierge.  They met in New York in 2003, married in England in 2005, (where they lived) and separated in 2016. They had two children aged 11 and 7.  The parties were each aged 45.  At the time of separation, the wife had interests in various trusts totalling $60m, and a property in Barnes worth £1m. The husband had worked in the hospitality business throughout the marriage, but had no pension or savings.  His debts significantly exceeded his assets. Two weeks before the marriage, the parties signed a prenuptial agreement which had been drafted by the wife’s US lawyers.  It provided for the husband to get nothing in the event of divorce, and that the parties agreed to submit to the exclusive jurisdiction of the New York courts.  The husband obtained advice from an English solicitor who had assisted the wife in her previous family law matters.  He was advised not to sign it. The wife sought to rely on the prenuptial agreement to defeat any claims the husband may have had for a financial remedy following divorce.  He argued that it was not fair to hold him to it in the circumstances of this case.  The court agreed with him. Firstly, the court made it clear that it was satisfied that the wife was solely entitled to the trust assets and the trustees would probably make funds available to her to satisfy a court judgement.It then decided that it would be wholly unfair to hold the parties to the terms of the prenuptial agreement, and so no weight should be attributed to it.  Interestingly, the court was persuaded by the fact the parties had decided the agreement would be governed by New York law.  The agreement itself had a fatal defect; namely the absence of an attestation certificate that it conformed to local law.  In New York the agreement would not then have been upheld.  It was therefore unfair to uphold it here in the UK. The court was also concerned that the husband did not fully appreciate the implication of the agreement.  It was not satisfied the advice the husband received was independent, and the agreement itself did not meet the husband’s needs. On the basis of those needs the court awarded the husband approximately £1.3m, as it was deemed to be in the children’s best interests that their father had a reasonable home. If you would like some advice about prenuptial agreements, or you need help with a financial remedy case, make an appointment to see Aysen by contacting Mavis on 020 8885 7986.