1. There is the expectation that, if the provision in the pre or post nuptial agreement is fair and has been regularly reviewed by the couple and recorded as fair, that the court will allow the terms of the agreement to stand even if, had there not been an agreement, the court would have made a different order.
2. The cases seem to show that even where the courts have moved away from all of the provisions of a pre or post nuptial agreement, their award to the person seeking to back out from the terms of the agreement is usually lower than would otherwise have been the case. The existence of the pre or post nuptial agreement often reduces the provision that is made.
3. The existence of a pre or post nuptial agreement can discourage litigation overall. If the couple have agreed the provision that they each feel is fair, then there is no reason for either of them to want to litigate and seek something different. The court is only involved to set aside all or some part of an agreement if one party asks it to, it does not come in of its own accord to challenge the terms agreed.
A pre or post nuptial agreement has to be drawn up by lawyers and each person has to have independent legal advice, to understand what their claims might have been so they are fully aware if they are accepting less than they might otherwise receive, if there were a divorce.
There are additional rules in respect of a pre nuptial agreement to prevent one person entering into it under inappropriate pressure, very close to the wedding. It is important to speak to a solicitor in good time (at least 3 months in advance and ideally more) about drawing up a pre nuptial agreement as it will carry far less weight if it is completed very close to the wedding.
In reported cases where there has been a substantial personal injury award, the courts have shown that they are still prepared to take the capital awarded as part of the pot available for distribution so it is particularly important to record any agreement between a couple that it will remain with one person to address their needs, in a pre or post nuptial agreement.
