Why It Is Important to Involve First Class Solicitors For Prenuptial Agreements

28 Jun 2023 | Sarah Norman-Scott
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Prenups have historically have a bad reputation, but they are starting to lose the negative stigma and are now common among wealthy individuals, particularly in second or subsequent marriages. However, a familiar concern among clients is: how can I avoid the risk of being accused of exerting undue pressure on my partner and what can I do to ensure it is upheld?

The answer lies in involving specialist prenup solicitors. The family lawyers at Osbornes Law are highly experienced in helping HNW individuals agree a fair prenup. Taking legal advice should not signify distrust of your partner, rather, lawyers help to protect the parties and provide peace of mind around the potential for a future financial dispute.

Independent legal advice is required

Prenups are contractual agreements defining how assets will be divided on divorce. While a prenup may be binding, the courts will not always uphold the agreed terms, especially where the agreement is considered unfair.

Crucially, the UK courts will not uphold the terms of a prenup (PNA) if either party did not receive independent legal advice. Emerging from the High Court is a cautionary reminder of the importance of involving expert solicitors if you’re considering a PNA, as seen in MN v AN1.

What happened in MN v AN?

In MN v AN the husband (H) enjoyed a successful career in finance, while the wife (W) has not worked since 2004 (the parties’ identities are unknown). They agreed a prenup in 2005 and married the following year. At the time of the prenup, H was worth £32.5 million and W just £62,000.

Both parties took specialist advice with leading solicitors. Under the terms of the prenup W would receive £11.75 million (or 42% of H’s overall wealth if that was greater).

In 2019, the parties separated and W applied for financial remedies well in excess of what she would have received under the prenup. She said the PNA was unfair and did not meet her reasonable needs. She also claimed that H had behaved coercively and controllingly towards her. For instance, she said he had insisted they enter the PNA and that there would be no wedding unless she signed.

The judge rejected her claims, saying there was “not a shred of evidence” of coercive control.

First-class solicitors

The court placed great emphasis on the fact that W instructed “first-class solicitors” who took their role seriously. They had asked accountants to analyse the effect of the proposals on her; they did not advise W not to sign the prenup, nor was she advised to sign a disclaimer (which is common if a client’s lawyers are troubled about a proposed agreement).

The judge said the reason was clear: it was a reasonable deal and well within the bracket of reasonable agreements that the parties could have reached.

What does this mean?

Signing a prenup does not automatically mean the terms will be binding on the parties. This decision illustrates that taking robust advice from experienced family solicitors could prove a deciding factor in your favour were the other party to try to avoid the prenup at a future time.

For specialist legal advice, contact Sarah Norman-Scott at Osbornes Solicitors on 020 7681 8695

1MN v AN [2023] EWHC 613 (Fam).

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