If you have a Pre-Nuptial Agreement and are worried that its terms may be unfair, you may be wondering whether you can challenge it. Sky Atlantic’s ‘War’, which centres on a high-profile divorce and an agreement described by the husband’s solicitor as ‘airtight’, illustrates why this question matters: even a carefully drafted Pre-Nup may be scrutinised when a marriage ends.

The reality is that Pre-Nuptial Agreements are not strictly legally binding in the UK but the court will give substantial weight to the terms of an agreement if certain criteria has been met.

If a party seeks to depart from the terms of a Pre-Nup they would not technically be ‘appealing’ it but rather challenging its validity or enforceability.  

Grounds for challenging a Pre-Nup

• A Pre-Nuptial Agreement must meet both parties’ needs and the needs of any children. If it fails to do so and would leave one party in financial difficulties, then the court will not consider the agreement fair, and it is very unlikely to be upheld.
• Both parties should have had the opportunity to obtain independent legal advice before entering into the agreement. If one party did not have independent legal advice or, did not fully understand the implications the agreement they were entering into, this would be a reason to challenge the enforceability of the agreement.
• If a party was placed under considerable pressure to sign the agreement, particularly in close proximity to the wedding or was forced to sign the agreement under duress, this would be taken into consideration by the court and again would be a reason to challenge the enforceability of the agreement.
• If there was a lack of transparency when entering into the agreement, for instance one party did not disclose the full extent of their wealth or attempted to concealed assets, it is likely to be determined that the other party did not enter into the agreement with a full appreciation of the asset base and ultimately could not make a determination as to what would be ‘fair’ in terms of the division of assets.  
• If there has been a significant change in circumstances and the parties have not reviewed the agreement as a result, then this may also leave the Pre-Nup vulnerable to challenge. A significant change in circumstances will include things such as birth of a child/children, redundancy, disability or  long term illness. It is preferable for parties to review the terms of their agreement upon a change of circumstances or every 5-10 years to ensure that this still meets both parties needs. 
• A Pre-Nup can also be challenged on the basis of validity, if the correct formalities have not been followed for instance, in respect of signing the agreement before the wedding.

If you are considering challenging a Pre-Nuptial Agreement, or need to respond to a challenge by your former spouse, early legal advice can help you understand your position and decide what to do next. JMW’s specialist family lawyers can assess the terms of the agreement, the circumstances in which it was signed and any subsequent changes in circumstances, before giving you a clear view of the strengths, risks and practical options. We also advise on the preparation and review of both Pre-Nuptial and Post-Nuptial Agreements. To arrange an initial conversation at a convenient time, please complete our online enquiry form.