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Practical pre-nups

As pre-nuptial agreements are predicted to gain popularity, Iain Harris offers practical guidance on ensuring their validity

25 August 2006

"They are not worth the paper they are written on", has been the general approach taken by family lawyers advising on pre-nuptial agreements. However, there has been a perceptible shift in this position. Recent case law underpins this shift and there is value in entering into a pre-nuptial agreement, but certain matters need to be addressed in order to give any such agreement the greatest possible prospect of being enforced by the courts.

Traditional position

The historic starting point has always been the House of Lords decision in Hyman v Hyman [1929] AC 601, where Lord Hailsham LC said at p 607 that:

“Before 1857, it was not competent for any court to dissolve a marriage validly contracted; in order to effect such a dissolution it was necessary to have recourse to an Act of Parliament. In 1857, the legislature for the first time gave to the courts the power to dissolve the marriage tie by a decree of divorce… the court may c...

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