In such circumstances, the use of a pre-nuptial agreement (‘pre-nup’) is likely to make a great deal of sense. Although such agreements are still rather a grey area legally speaking, in a leading case on the subject the judge most helpfully suggested a number of criteria which would assist the courts in deciding whether a pre-nup would be regarded as enforceable by the court.
The most important of these from the perspective of the parties to a pre-nup are:
- Does the spouse being asked to sign the pre-nup understand it?
- Have they been properly advised as to its terms?
- Was pressure exerted by their spouse to make them sign?
- Was there full disclosure of the relevant assets?
- Was pressure exerted by anyone else to make them sign?
- Was the agreement signed willingly?
- Did one spouse exploit a dominant position?
- Was the agreement entered into in the knowledge that there would be a child?
- Has any unforeseen circumstance arisen which would make enforcing the pre-nup unjust?
- Does the order preclude the payment of any periodical payment for maintenance of the spouse and if so, would it be unjust to hold the parties to that agreement?
- Are there grounds for believing that upholding the agreement would be unjust?