The worst of both worlds?

In England and Wales pre-nuptial agreements (PNAs) are void on public policy grounds and cannot be enforced. However, they remain subject to the judicial discretion conferred on judges to achieve fairness between parties in ancillary relief proceedings (Matrimonial Causes Act 1973, s 25). This situation has been criticised as “the worst of both worlds” (Hoffmann LJ in Pounds v Pounds [1994] 4 All ER 777).

The 1998 government green paper Supporting Families suggested that PNAs should not be legally binding where:
l one or both parties have not obtained independent specialist legal advice;
l no provision is made for children;
l the PNA does not comply with general contract law;
l the PNA is unjust to one or both parties;
l one or both parties failed to provide prior full financial disclosure; or
l the PNA is made less than 21 days before the marriage.

Further, the deputy High Court judge in K v K (Ancillary Relief: Pre-Nuptial Agreement) [2003] 1 FLR 120 distilled from the authorities on PNAs a checklist