Legal decision gives post-nup agreements backing of the Courts

Britain's most senior judges have ruled that a post-nuptial agreement drawn up during the marriage of a wealthy divorcing couple was legally binding.

The case of MacLeod involved a millionaire husband and his wife, who had agreed a pre-nup when they married – and even videotaped the signing. But in 2002, Mr MacLeod discovered his wife had been unfaithful and the terms of their pre-nuptial agreement were amended.

In 2003, Mr MacLeod issued divorce proceedings under Manx law, as the couple were then living on the Isle of Man. When it came to dividing their assets, Mrs Macleod wanted £5.6m rather than the £2m provided for in the 2002 agreement. She argued she had been pressured into signing the post-nup and that her husband had not disclosed his full wealth.

The first time the matter came before a judge, Mrs MacLeod was awarded extra provision for housing (£1.25m). It was also decided that the house should be for her rather than held on trust for the children. Having unsuccessfully appealed, Mr MacLeod took the case to the Privy Council, asking for Mrs MacLeod to be held to the post-nup. The Privy Council agreed, and she walked away with £2.2m.

The vital point from this case is that post-nups now have the strength of the law behind them – as long as they accurately reflect the couple's circumstances.

I have no doubt that we will see a significant increase in the number of post-nups being drawn up. Some would argue that the post-nup is a more amicable way of agreeing who has what during the course of the marriage, rather than before.

Prior to any agreement, both parties should provide full disclosure of each other's assets and income. It is vital that both partners seek independent advice from a skilled lawyer. As for pre-nups, the Law Commission has a view to drafting up a Parliamentary Bill in 2012.

Yorkshire Post [2009-04-01]