Pre Nup Update

7th August 2023

Last year, the Family team here at Kuits looked into whether pre-nups were an un-romantic no-no or a fact of modern life.

We concluded that whilst such agreements are indeed unromantic, they are an extremely important wealth protection tool, especially where there is family wealth and family businesses, to avoid long and complex financial proceedings on divorce.

We are often asked if these agreements are enforceable and the recent case High Court case Cummins v Fawn [2023] offers further clarification on this point.

Before this case,  the landmark case of Radmacher stated that if such an agreement was entered into freely it was likely to be upheld unless it left either party in “a predicament of real need” financially. Cummins states that the agreement needs to leave the party ‘within the range of acceptable outcomes to be upheld as fair but it does not have to go as far as meeting their reasonable needs’.

In practice, this means that if an agreement is challenged and Cummins is relied upon, the Court should adopt a broad approach to assess whether an agreement is fair, as opposed to embarking on a detailed forensic analysis of the parties’ living arrangements before and after divorce. Crucially, the Court should keep ‘adjustments to a minimum’. This provides less flexibility to the Court and can be seen as a positive ruling for those hoping that their pre or post nuptial agreements are upheld upon divorce.

Kuits Legal 500 recommended Family department specialises in drafting and advising on pre-nuptial and post-nuptial agreements. If you need assistance with yours or advice on any other Family legal matter please contact our Family Team on 0161 832 343

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