- Both the husband and wife must enter into the agreement of their own free will, without undue influence or pressure, and informed of its implications;
- Each party should intend that the agreement should be effective;
- Are any of the standard vitiating factors: duress, fraud or misrepresentation, present? Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have.
- Unconscionable conduct such as undue pressure (falling short of duress) will also be likely to eliminate the weight to be attached to the agreement, and other unworthy conduct, such as exploitation of a dominant position to secure an unfair advantage, would reduce or eliminate it.
- When the Court considers whether it would be fair to hold the parties to their agreement, it will ensure that the reasonable requirements of any children of the family are not prejudiced by the agreement.
The reason why the court should give weight to a nuptial agreement is that there should be respect for individual autonomy.
The Supreme Court considered this to be particularly true, where the agreement of both parties addresses the existing circumstances, that is, a separation agreement, rather than merely addressing the contingencies of an uncertain future.
Therefore, agreements negotiated at the point of separation, which subsequently breaks down, because one or other party thinks they should have more, may very well find that the court holds them to the agreement if they entered into the agreement freely, with sufficient legal advice.
It is worth noting that the court is unlikely to consider an agreement fair – whether negotiated before or after marriage - that sees one party retaining all of the wealth and the other in a predicament of real need.
Although while the court will always ensure that one party is not left without the means to financially sustain themselves, there is a world of difference in the financial remedy courts between an award based on a generous needs based assessment, and an award designed to alleviate real need.
What agreements can, and regularly do, regulate is the share of wealth that the party who has not been the creator of such wealth receives. In that situation the agreement would meet the needs of the other party, perhaps to a generous level, but would not give them a share of wealth beyond meeting need.
Therefore this is particularly relevant for high-earners, particularly those who acquired significant wealth, or created the foundations for significant wealth, before the parties marry.
