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I signed a prenuptial agreement before my marriage. During my divorce, will it hold up in court?
Alistair Myles, partner at Ribet Myles Family Law says if your prenuptial agreement was done properly, then yes, it’s very likely to be upheld. That means both you and your partner had independent legal advice, you both fully disclosed your finances, it wasn’t signed under pressure (ideally at least four weeks before the wedding), and crucially, the terms are fair — especially when it comes to any children involved. Pre-nups aren’t automatically binding in England and Wales, but in practice, courts generally uphold them as long as they meet these key requirements.
The significant case here is Radmacher vs Granatino (2010), where the Supreme Court confirmed that pre-nups should be enforced unless it would be unfair to do so. That ruling set the precedent that if a pre-nup is properly drafted and reasonable, it should stand. However, because pre-nups don’t have the same watertight legal status as contracts in other areas of law, there’s always a chance one party will try to challenge it. They might claim they signed under duress, that financial disclosure was incomplete, or that their circumstances have changed so much that enforcing the pre-nup would now be unfair. Even if they ultimately lose, the fact that they can still bring a challenge undermines one of the main reasons people enter into pre-nups in the first place: to avoid the stress, cost, and uncertainty of litigation if the marriage ends.
Some argue the law should change to make pre-nups fully binding, eliminating this risk altogether. However, English law has always prioritised fairness, and judges are reluctant to lose their scope for discretion. The courts want to ensure that no one is left in financial difficulty — especially if children are involved. If pre-nups were completely binding, there’s a risk that a financially dominant spouse could impose unfair terms, leaving the more vulnerable party with no safety net. The current system tries to strike a balance, allowing couples to protect their assets while still giving the courts the power to step in if needed.
Other countries take a different approach. In France and Germany, pre-nups are a routine part of marriage, and couples commit to a specific marital property regime from the outset. This creates much more certainty and drastically reduces the likelihood of disputes later. If the UK wanted to offer more clarity, it could follow this model — making pre-nups binding by default while still allowing some exceptions in cases of clear injustice.
So, will your pre-nup hold up in court? If it was prepared properly and is fundamentally fair, then the answer is almost certainly yes. But because the law still allows room for argument, there’s always a degree of uncertainty — something to keep in mind when planning your financial future.
I’m one of two directors of a roofing firm which has been operating for 20 years. I am hoping to retire later this year, and have asked my fellow director if he wants to buy me out — our accountant has valued the business as being worth £1mn. Instead, he has helped his son set up another business which I think will compete with us and take business away. Is there anything I can do to protect the value of my share of the business?
Katarina Morgan, an associate solicitor at Taylor Walton Solicitors says it must be frustrating to watch a business that you have spent years building up being undermined and more worryingly the risk of you losing a valuable lump sum so close to retirement.
Assuming that both directors are also the only two shareholders and nothing drastic (bar the competition business) has happened, then your fellow director needs to consider the following.
All directors have duties under the Companies Act 2006. For example, among other things, they need to promote the success of the company for the benefit of its members or shareholders; act with reasonable care and avoid conflicts of interest.
Directors’ duties are owed to the company, and as the outgoing director and shareholder you may have the right to bring a claim against your co-director by the company for failing to promote its success and for failing to avoid conflicts of interest.
Separately, if it can be proven the business has suffered as a loss of the competing company being set up and the shareholders have consequently suffered a loss, you may be entitled to bring an unfair prejudice petition (UPP). This is a petition to the court that the company’s affairs are being conducted in a way which unfairly prejudices the members.
What you’re doing is essentially a corporate divorce, and the outgoing shareholder will usually be bought out by the company, the other director or another person.
In terms of proactive steps you can take now, you can start by ensuring all decisions are recorded in detail and that minutes are taken at all board and general meetings. You should also review the shareholder’s agreement, if you have one.
Then you should speak to your co-director and raise the concerns directly to them if you can. You will also need to gather evidence to prove the competing business is affecting the current one and what has been done to address it.
Intra-company disputes are expensive, especially UPPs and derivative claims can be tricky (you need court approval first). You may want to consider Alternative Dispute Resolution such as mediation to help reach an agreement.
The opinions in this column are intended for general information purposes only and should not be used as a substitute for professional advice. The Financial Times Ltd and the authors are not responsible for any direct or indirect result arising from any reliance placed on replies, including any loss, and exclude liability to the full extent.
Do you have a financial dilemma that you’d like FT Money’s team of professional experts to look into? Email your problem in confidence to [email protected].
Our next question
Shortly prior to my mother’s death, my brother, with whom I have a poor relationship, persuaded her to vary her will meaning that I’ve ended up with one-quarter of the estate instead of half. I need the full half for my retirement, but don’t have funds for a legal fight if my brother drags it out. What are my options?