There is no doubt now that a UK prenuptial agreement will, in normal circumstances, be taken into account by a UK Court provided that the legal requirements for a prenuptial agreement have been fulfilled.
This is an important qualification. Any UK prenuptial agreement must, of course, follow the requirements that the UK Courts have laid down for such agreements. Otherwise, the Court will tend to ignore or overlook such prenuptial agreements. UK policy however is now to take such agreements into account unless this would be manifestly unjust or unfair.
However, the UK law is based on the fundamental principle that the Court must retain its discretion to achieve a just result in any financial divorce settlement; in spite of a prenuptial agreement, UK courts do still insist on having complete and total discretion to decide how to divide the assets of the marriage in order to achieve fairness and, in deciding what is fair, the starting point for any UK Court is Section 25 of the Matrimonial Causes Act 1973.
Section 25 sets out the guidelines (see below) that the English courts must still apply in deciding who gets what in any divorce proceedings, even if a UK pre-nuptial agreement has been entered into before the marriage.
Clearly, a prenuptial agreement that provides, for instance, that on any divorce the husband or the wife will not make any claim on the assets of the other party could quite easily conflict with the requirements of Section 25.
The prenuptial agreement may itself lead to a result that the UK Court may consider unfair or unjust.
In other words, even where a Court is minded to take account of the existence of the prenuptial agreement and the wishes of the parties as expressed in the prenuptial agreement, the Court will not allow such prenuptial agreement to bring about an unfair result.
Nevertheless, in cases involving prenuptial agreements, UK court policy now seems to be to allow the result that would have been imposed by applying the section 25 principles to be modified considerably by the wishes expressed in the prenuptial agreement.
For this reason, great care must be taken by the parties (and their advisers) in drawing up any prenuptial agreement to ensure that its terms are consistent with the legal requirements that have evolved over the last few years.
So what approach is a Court likely to take when faced with a prenuptial agreement?
The approach of the UK courts in recent cases seems to be to temper the requirements of Section 25 by the wishes of the parties as expressed in a prenuptial agreement, provided that the requirements for the prenuptial agreement to be taken into account have been observed and further provided that giving effect to the strict letter of the prenuptial agreement does not unfairly prejudice the parties or any child of the marriage or otherwise create an inequitable or unfair outcome.