Are Pre-Nuptual Agreements Legal?
A High Court decision by Mr Justice Mostyn in March 2019 reminds us that not all prenuptial agreements will stand up, particularly if you don’t go through the proper formalities when it is signed, and if the prenup is too one-sided.
Mr Ipekci and Ms Connell met in November 2003 in New York. It must have been like a movie – he was a penniless hotel worker, she was a wealthy heiress with a large trust fund - the great-granddaughter of the man who established Avon cosmetics – and she was married to someone else. But they fell in love, so she got a divorce and they married in November 2005.
Unsurprisingly her family’s lawyers drew up a prenuptial agreement for him to sign. Arrangements were made for him to be advised by the solicitor who had advised Ms Connell in her divorce, and he signed it just two weeks before the wedding took place. It is not entirely clear from the report whether he was in New York or London at the time, but they seem to have lived in London for most of the marriage.
They separated in 2016 by which time they had two children aged eleven and seven. They divorced and Ms Connell asked the court to uphold the prenuptial agreement under which he would get basically nothing. By this stage he was working as head concierge in a London hotel, earning about £35,000 a year.
Mr Justice Mostyn declined to uphold the agreement and gave a number of reasons: –
Mr Ipekci did not get proper independent advice before he signed it – the agreement was expressed to be governed by the law of New York State, about which the English solicitor who advised him knew nothing. There was also a suggestion that the solicitor might have been biased, because he had advised Ms McConnell on her previous divorce, which seems to have been shortly before they married.
The agreement was technically defective, because a certificate was missing, so it would not have been upheld by the courts in New York in any event.
Importantly the agreement was unfair, because it did not make reasonable provision for Mr Ipekci’s needs. Mr Justice Mostyn commented that an agreement which will leave one party on the breadline and the other relatively well off is unlikely to be upheld, particularly (but not only) where there are children. He said that it cannot be in the interests of the children to see one of their parents destitute whilst the other lives reasonably well.
In the particular case Mr Ipekci was awarded just over £1.3 million. Of that money £750,000 was intended to buy a house in London, of which half will revert to Ms McConnell on Mr Ipekci’s death. The remainder was intended to settle some of his debts and to supplement his income, but a fair chunk of that will have gone on legal fees.
So, this case is a reminder that prenuptial agreements have to be prepared very carefully. If the agreement is to have a reasonable prospect of standing up, it needs to be drawn up by expert lawyers, with both parties having proper independent legal advice.
And it needs to be reasonably fair. Otherwise the agreement is likely to be a waste of paper, and a source of more argument between the parties if they separate. In this case, between them, Ms Connell and Mr Ipekci seem to have spent a just under £500,000 on legal fees in their divorce.
For more information about drawing up a pre-nup take a look at our website.
John Pratley is an expert divorce lawyer, who has more than 25 years experience advising clients purely about divorce and related family law issues, such as the financial consequences of separating and divorcing. After establishing the first niche family law practice in Bristol, and going on to senior management roles in a national firm, John set up Apple Tree Family Law in 2018. Apple tree family Law solicitors specialise in advice about divorce and financial issues.
We are based in Bristol and Exeter, but we have clients all over the UK and further afield. We offer, simply, clear and accurate advice about divorce and family law issues, and the very best client service, for a clear and reasonable price.