Resolution Podcast S3 Episode #3 | Prenups - Definitely Worth the Paper it is Written on | w/ Connie Atkinson & Nicholas Bennett

Talking Family Law - The Resolution Podcast

In this episode we are joined by Nicholas Bennett (29 Bedford Row), and Connie Atkinson (Kingsley Napley) who are both experts and enjoy pre-nuptial work including drafting, supporting or challenging pre-nups in Court.

Any discussion of pre-nups of course starts with Radmacher v Granatino [2010] UKSC 42, but we swiftly move on to Crossley applications (an application to the Court that the process of disclosure should be truncated because of the existence of the pre-nup) pursuant to Crossley v Crossley [2007] EWCA Civ 1491https://www.bailii.org/ew/cases/EWCA/Civ/2007/1491.html. It is ‘tempting but risky’ was the conclusion, so it is only prudent when the pre-nup is a knock out blow.

We discuss the three essential procedural points that the Court is looking for before giving weight to the agreement – no unfair pressure, financial disclosure and independent legal advice. We touch on the suggestion that an agreement has to be signed 28 days before the wedding and its relevance to giving time and space to understand and reflect on the proposed agreement and advice being given. We then turn to duress, fraud and misrepresentation and whether they are vitiating factors and what you would take into account when evaluating their impact on the agreement. Connie refers us to the case of Traharne v Limb [2022] EWFC 27 (31 March 2022) https://www.bailii.org/ew/cases/EWFC/HCJ/2022/27.html and AD v BD [2020] EWHC 857 (Fam) (08 April 2020) https://www.bailii.org/ew/cases/EWHC/Fam/2020/857.html.

Nick discusses whether it is possible to entirely exclude what would otherwise be matrimonial property in a pre-nup, and refers to Brack v Brack [2020] EWHC 2142 (Fam) (29 July 2020); https://www.bailii.org/ew/cases/EWHC/Fam/2020/2142.html.

Connie discusses whether a pre-nup meets needs. She refers us to Ipekçi v McConnell [2019] EWFC 19 (04 April 2019);https://www.bailii.org/ew/cases/EWFC/HCJ/2019/19.html, and Cummings v Fawn (Rev1) [2023] EWHC 830 (Fam) (14 April 2023) https://www.bailii.org/ew/cases/EWHC/Fam/2023/830.html.

Nick mentions HD v WB [2023] EWFC 2 (13 January 2023) - https://www.bailii.org/ew/cases/EWFC/HCJ/2023/2.html

We also discuss international agreements, and marriage contracts, including CMX v EJX (French Marriage Contract) [2022] EWFC 136; https://caselaw.nationalarchives.gov.uk/ewfc/2022/136