It is being reported in the press that Kevin Costner and his former wife's divorce settlement has been decided by a judge in Santa Barbara. Reports say that the judge decided that they should be held to the terms of their prenuptial agreement which was signed in 2004.
The divorce laws in sunny California are different to those in England and Wales, and, over here, the English courts do not automatically implement the terms of these kind of agreements and retain the ability to consider the issues in a case. The situations where a court will not uphold an agreement are now quite limited. Both parties should only ever enter this kind of agreement if they intend to be bound by it, on the assumption that it will be upheld.
Couples are also choosing to enter nuptial agreements (either prenuptial agreements before marriage or postnuptial agreements after marriage) more and more. They are not just the preserve of the wealthy. The English courts recognise the importance of individuals having autonomy over their own finances and provided the agreement is fair and reasonable (e.g. it does not leave one party in a position of dire need), in all the circumstances of the case, couples will be held to the terms of the agreement. A court will also consider:-
- How the agreement was entered into;
- When the agreement was signed (and the proximity to the marriage. For a prenuptial agreement this should be no later than 28 days prior to the wedding but it is possible to sign after that date, noting this in the agreement);
- Whether the couple had all the information they required about the other's finances; and
- Whether the couple each had independent legal advice on the terms of the agreement.
We are not a nation which has a long established culture of nuptial agreements, unlike many US states and European countries like Germany and France. With lots of couples now choosing to enter agreements which set out how they intend to divide their separate and joint finances if they divorce, the courts are also more readily holding couples to the terms of agreements reached.
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