Beware of the Prenups! A warning from the Aussies!

With the Law Commission considering the change of legislation providing for the validity of prenuptial agreements in the courts of England & Wales following the decision of the Supreme Court in Radmacher and Granatino last October, Australian lawyers are advising that they are shying away from drafting such agreements following a raft of insurance claims for negligence.

With more of us undertaking Prenup work following the Radmacher ruling it was interesting to hear Paul Doolan from Barkus Doolan Kelly based in Sydney address us at the International Academy of Matrimonial Lawyers (IAML) conference in Harrogate in September where he informed us that prenuptial agreements have been part of the Australian landscape for over ten years and cover the issues of property and spousal maintenance.

He stated that the Australian Courts had adopted a very strict approach to interpreting the agreements. Initially as a result of the mandatory language of the governing legislation, many agreements faced being
struck out through minor provisions being breached. The law was changed retrospectively to ensure that hundreds if not thousands of Agreements would not be declared as non-binding.

Far from reducing the number of applications to court, Paul said that there had been an increase in litigation in seeking to confirm whether or not they should be binding based upon some of these technicalities.
Lawyers are now considering very carefully whether or not they should take on such work as premiums for professional indemnity are increasing dramatically due to the potential for professional negligence claims.

The recent case of Wallace & Stelzer was brought before the Australian Court where the husband sought to challenge the Prenup on the basis that the agreement was flawed for various reasons of a technical nature but also that representations made by his wife that “she loved him, wanted to have children with him and wanted to live with him for the rest of her life” taken with other statements and modes of behaviour on her part were
evidence of fraud and unconscionability on her part.

The Judge ruled in favour of the wife and upheld the provision to provide $3.25m from the husband’s $16m assets.

With increasing couples marrying later in life with acquired assets or second time around, I continue to foresee an ongoing rise in instructions in this work. I am sure that with most European jurisdictions already recognising such agreements, England and Wales will follow suit.

No doubt today’s breaking news that the Duchess of Alba at 85 is set to marry again will continue the debate as to whether she will have ensured that her £3bn wealth has been protected for the benefit of her children.

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