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QUESTION

I understand from the newspapers that a prenuptial agreement is binding. My daughter is just about to get married, and I know that she will inherit a large sum of money from her grandfather in due course.

Should I press her to have a prenuptial agreement made?

ANSWER

I think in the circumstances a prenuptial agreement would be a sensible step, although you need to be well aware that such an agreement will not necessarily be taken by the divorce courts as binding, as this is not what the Supreme Court decided in the case of Radmacher v Granatino on 20th October this year.

Whilst a lot of the publicity surrounding this judgment suggested that from now on prenuptial agreements in this country are binding, this is not entirely correct.

The Court have said that they will give significant weight to a prenuptial agreement that has been
entered into by parties who understand the terms of that agreement, but if at the time of any divorce those terms appear to be manifestly unfair, then a Court can decide not to follow those terms.

In practice I think this will mean that if your daughter and her husband divorce reasonably shortly after their marriage, in say two to five years and before there are any children, then it may well be that the prenuptial agreement will hold.

In my view the longer the marriage the less likely it is that the prenuptial agreement will be followed.

QUESTION

I am in the middle of a divorce and have received details from my husband’s solicitors setting out his financial circumstances, but this document fails to disclose some of my husband’s savings.

I have taken evidence of these savings to my solicitor, but he is refusing to use this documentation.

As far as I can see, this means that my husband will get away with hiding assets from the Court, and I will be significantly disadvantaged.

Do you think I should change my solicitor?

ANSWER

No. Traditionally, it has been relatively common for divorcing couples to make surreptitious searches of each other’s studies, brief cases and even computers. Whilst there have been rules surrounding the way in which lawyers use information so obtained, the Courts have, in the past, been prepared to look at information in this way.

This all came to an abrupt end when the Court of Appeal came to a decision in the case of Tchenguiz v Imerman; Imerman v Imerman [2010] EWCA, when the Court of Appeal ruled that information obtained illegally should not be taken into account by the Court.

Not only that, but the Court decided that, if a solicitor used information that had been obtained illegitimately that solicitor could himself be legally culpable for the consequences.

I presume therefore that you obtained information about your husband’s secret savings by searching his papers or documents secretly. If this information had simply been lying around, say on the kitchen table or in a lobby, then your picking it up and using it would perhaps not be considered an illegal act. However, a secret search of your husband’s papers and documents would be considered illegitimate, and your solicitor will have no alternative but not to use the documents that you have turned up.

You should not read them, although you can pass them to your solicitor who will post them straight on to the other side without reading them.

Your only option is to raise questions of your husband in relation to his savings, and hope that he gives truthful answers. If you feel that the amounts involved are very significant then you may be able to obtain a Search Order from the Courts under the terms of which a physical search could be made of your husband’s property, but this is a very expensive way forward.

It may well be that the law is currently somewhat unsatisfactory in this regard, but I do not think that your solicitor is taking an inappropriate approach.

If you would like a first free appointment with Barbara Jordan with no obligation please call: 01242 269198.

The information provided here is given for general information purposes, and does not constitute legal advice.