In the recent case of Camilla and Gerard Versteegh the Appeal Court declined to increase her £90 million divorce package.
One of the main issues being that the couple had signed a pre-marital agreement in Sweden where such agreements are usual.
In this case, the wife sought not to be bound by the agreement and wanted the English court to approach her settlement on the basis of the more usual starting point in England of 50:50 share of the assets.
Although the court did not hold the wife to the Pre-Nuptial Agreement it was a significant factor in the decision on the divorce settlement.
An important point arising from this case was whether or not the wife was fully aware of the meaning and effect of the Pre-Nuptial Agreement. The court considered that she was fully aware of it even though, in her case, she had signed it only the day before her wedding and had not had legal advice. Part of the reasoning was that she was from Sweden where these agreements are quite usual. The terms of it had in addition been referred to over the years by the wife.
It is of note that although the court did not hold wife to the Pre-Nuptial Agreement it did not then disregard it altogether.
It does, therefore, appear that the court are regularly taking Pre-Nuptial Agreements into account in divorce proceedings.
The present position in English law is that neither party can be held contractually to the terms of a Pre-Nuptial Agreement because it is not binding. It is however given weight when the court make a decision. Where a couple are clear they do not want their assets to start from a basis of equal sharing it is worth having a Pre-Nuptial Agreement.
These are often thought of as an agreement that is made after a wedding, perhaps there has been insufficient time before the wedding itself for it to be done. However, a Post-Nuptial Agreement can also be entered in to by a couple who wish to attempt reconciliation after a period apart or even where finances have been a significant issue in the relationship. At the moment it would not be binding at the time of divorce but would be strong evidence of their intentions.