People come in wanting a prenup for sensible reasons. A business with other shareholders. Children from an earlier marriage. A deposit that came from parents. A binding financial agreement can deal with all of that, and it can hold.
What makes an agreement fragile is almost never the drafting. It is the circumstances in which it was signed.
The lesson people take, and the one they should
The lesson usually reported was that prenups are now worthless. That is not what happened. The Court did not say financial agreements are unenforceable. It said this one was procured in circumstances the law does not tolerate.
The more useful reading is that a court will look past the signature page at the situation of the person signing. The Court set out six matters that will have prominence in a case about a financial agreement.
- Whether the agreement was put forward on a basis that it was not open to negotiation.
- The emotional circumstances, including any threat, said or unsaid, to end the marriage or the engagement.
- Whether there was time for careful reflection.
- The nature of the parties' relationship.
- Their relative financial positions.
- The independent advice received, and whether there was time to reflect on it.
How to make one that survives
- Start early. Months before a wedding, not days. Time is the single most protective factor.
- Give full and frank disclosure of assets, liabilities and income, and keep proof that you did.
- Let the other person choose their own solicitor and take the time to use them.
- Make sure the agreement is not so lopsided that it is hard to explain to a judge years later.
- Keep the file: the drafts, the dates, the advice, the negotiation. The paper trail is the defence.
The other side of this is worth saying to the person being asked to sign. Advice that you should not sign is advice, not an obstacle. If you were told not to sign and signed anyway because the alternative was calling off the wedding, that is exactly the ground Thorne was decided on.