Decision to be made on enforceability of prenups

A case being heard by Britain’s most senior judges this week may settle the enforceability of prenuptial agreements.

The Privy Council, whose rulings are treated as binding, will hear an appeal from Rob MacLeod who has been required by two Isle of Man courts to pay out to his ex-wife a sum in excess of that stated in their prenuptial agreement.

The MacLeod’s prenup was taken into account by Manx judges but was not considered to be decisive. To cover housing Mr MacLeod was required to pay his ex-wife more than the £2 million set out in their agreement.

The enforceability of prenups was last considered by Law Lords in 1929 when they ruled that binding agreements would be in contravention of public policy. Since then family courts have used prenups as one of a number of factors to be considered.

Prenuptial agreements are particularly popular among the rich and famous thanks to their potential for reducing expense and publicity. Sir Paul McCartney and Heather Mills did not enter into a prenup while Tom Cruise and Nicole Kidman reportedly did.

Suzanne Kingston of London solicitors Dawsons LLP says that "many more people are entering in to these agreements, especially when one or both parties are from countries where prenuptial agreements are commonplace and enforceable. It would be helpful for lawyers and clients alike to have more guidance from the courts about the circumstances in which prenuptial agreements can be enforced under English law.”

“The Conservatives' think tank ‘The Centre for Social Justice’ has just published an interim report, which indicates that they believe prenuptial agreements should be fully enforceable - so this topic may enter into the mainstream political arena in the near future too."

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