The recent case of Caroline and William Hopkins highlights that post-nuptial agreements, just like pre-nups, can be legally binding even though there is still no legislation that states this.
A post-nuptial agreement (or post-nup or post-marital agreement) is a contract entered into by a couple after they have married or entered into a civil partnership. The aim is the same as a pre-nup i.e. that the couple want to decide what should happen to their assets if they divorce or dissolve their civil partnership.
The recent case emphasises that you shouldn't sign one, unless you are absolutely sure you want to be bound by it.
Mr and Mrs Hopkins whilst both married to other people, had an affair when they were in their 20s, as a consequence of which Mrs Hopkins conceived their son. They parted but always kept in touch and moved in together in 2001, marrying in 2009. By this time, Mr Hopkins was a property tycoon worth more than £38 million.
In August 2011, Mrs Hopkins signed a post-nuptial agreement with Mr Hopkins which provided for Mrs Hopkins to keep two properties, a car and a share of Mr Hopkins' pension. The post-nuptial agreement was signed at a time when Mrs Hopkins felt the marriage was in difficulty and despite repeated advice from her lawyers not to sign, she did so saying that her priority was to stay on good terms with her husband for the sake of their son.
The leading case affecting the way pre-nups and therefore post-nups are dealt with by the courts is Radmacher v Granatino which was decided by the Supreme Court in October 2010.
The Court will consider the following factors in deciding whether or not to make an Order in the same terms as a pre- or post-nup:
- Was either party under duress i.e. pressure to sign?
- Did each party obtain or have the opportunity of obtaining independent legal advice so that the implications of signing the pre- or post-nup were fully understood?
- Did each party know what the other party's financial position was at the time of signature.e. what their income was, their capital including interest in any business, property, savings etc. and their pension?
- Does the agreement meet everyone's needs, including those of any children living with the couple?
Mrs Hopkins tried to argue that she was under pressure to sign the post-nup and should not be stuck with its terms. She wanted more money. The Judge wasn't persuaded by her evidence and said that Mrs Hopkins was rational, thoughtful and saddened by her situation but certainly capable of independent thought and concluded that it was entered into freely by the wife, and with full appreciation of its implications
With an ever increasing number of pro forma documents available on the internet it may seem straightforward enough to draw up a pre-nup or post-nup contract and sign it. This recent case emphasises just how important it is that you need to be fully aware of the implications of doing so or and how difficult it can be to persuade a Judge at a later stage that you weren't in the right frame of mind when you signed up.
Members of the family team at Emsleys Solicitors are nationally accredited by the Law Society as specialists in family law and Head of Family Law Gabbie Clasper is nationally accredited by Resolution as an expert in cases with a financial element. Please contact us on 0113 201 4900 for an informal chat, free of charge.Back to Blog