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Pre-nuptial agreements and Contact Orders

23rd April 2014


I recently reviewed the law on pre-marriage agreements (or “pre-nup’s”) in a local magazine article. The Courts have provided further clarification of when such agreements might be ignored. In one particular case, the agreement was prepared by an experienced adviser following full and frank disclosure and with the full understanding of the terms by be parties. Despite this, the Court would not enforce the agreement and awarded the husband an initial housing fund of £900,000.00, and Ordered that his extensive debts should be paid, contrary to the prior agreement between the parties. The Court ruled that the agreement was weak and even unfair from the very start. A supplemental agreement had been signed during the course of the marriage and the Court gave greater weight to that. It is now suggested that solicitors should provide for reviews within pre-marriage agreements to ensure that both parties’ ongoing needs are met by the documents in place.

There are now many litigants in person (parties acting without legal representation) within matrimonial proceedings because Legal Aid has been all but abolished, except in some very specific instances. In a recent case Mr. Justice Mostyn said “the Court does not operate as some kind of advice bureau…. he [the litigant in person] must comply with the Rules”. The Judge was making clear that litigants in person are expected to comply with the Rules of Court, as with solicitors, and the Court will not treat a failure to comply by an unrepresented party lightly. The Court was making clear that an Order must be complied with and if it is not, woe betide the party who ignores it.

Contact and residence are often highly contentious issues. In a recent case Mrs. Justice Pauffley made a shared residence Order in respect of two children after a decade (yes a decade!) of litigation. The case involved numerous hearings, engaged every single Judge in the parents’ local Court at some time or another, as well as numerous different CAFCASS Officers. The case made the point that an adversarial approach to family disputes is often counter-productive and invariably to the detriment of the children concerned. The Judge praised the legal representatives concerned for attempting to find solutions rather than points score, contrary to the behaviour of the parents involved.

By Fraser Poole, Head of Family

Please contact our team if you would like advise or more information on pre-nuptial agreements or other areas of family law 01243 831004

George Ide
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