The criteria for a valid nuptial agreement: personal circumstances and mental capacity

When assessing the validity of a nuptial agreemnt, the court may consider the personal circumstances of the parties to help determine any vulnerabilities to undue pressure, or whether they would have known and understood the implications of the nuptial agreement in the absence of independent legal advice. 

Factors which may be considered include:

• Age
• Maturity
• Education
• Previous marriages or long-term relationships
• Financial sophistication

For example, the court may deem someone who is older and been previously married, as more likely to understand the effect of their nuptial agreement, or less vulnerable to undue pressure or influence, compared to a younger person.  

In Radmacher, the husband was deemed “financially sophisticated and highly educated”. This was one of the factors considered when the court decided to give effect to the couple’s nuptial agreement.  

mental capacity and the law

A person’s circumstances may also include whether they had the mental capacity to enter into a nuptial agreement in the first place. 

The Mental Capacity Act 2005 provides that: 

1. A person must be assumed to have capacity until it is established that he lacks capacity. 

2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success. 

3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision. 

4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests. 

5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action. 

A person will be found to lack capacity if at the material time, they were unable to make a decision for themselves in relation to the matter because of an impairment, or disturbance in the functioning of, the mind or brain. This may be temporary or permanent. Lack of capacity cannot be established just by reference to a person’s age, appearance, condition, or an aspect of their behaviour.  

To conclude that a person is unable to make a decision for themselves, they must be unable to: 

1. Understand he information relevant to the decision. 

2. Retain that information. 

3. Use or weigh that information as part of the decision-making process. 

4. Communicate their decision (including talking, sign language, or other means). 

A person should not be considered unable to understand the relevant information if they can understand an appropriate explanation, e.g. one using simple language or visual aids etc. Furthermore, they should not be deemed unable to make a decision if they are only able to retain the relevant information for a short period of time. The information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision.  

The requirement that a person’s inability to make a decision must be caused by an impairment, or disturbance in the functioning of their mind or brain, was emphasised in PC v City of York Council [2013] EWCA Civ 478.  

Whether a person has capacity is specific to the relevant issue. For example, a person may have capacity to do one thing, but not to do another. To determine capacity, the court will look to any medical reports and assessments. Expert evidence from medical professionals may also be sought.  

In PBM v TGT & X Local Authority [2019], the court considered the issue of whether a person had capacity to, among other things, enter into a nuptial agreement. Here, the court found that the person in question had capacity to marry and enter into a prenuptial agreement, but not to manage their property and financial affairs generally. This was determined based upon their ability to understand, retain, use, and weigh relevant information. Unfortunately, the judgment did not set out specific considerations or requirements for a person to have capacity to enter into a nuptial agreement in particular.  

The parties’ nationalities and the jurisdiction of the agreement

Furthermore, whilst the court will apply English law in cases where English jurisdiction applies, regardless of the parties’ domiciles or connections abroad, the latter may be considered to help determine the parties’ intentions. Radmacher is also a good example for this principle. In the husband and wife’s home countries, France and Germany, pre-nuptial agreements “are entirely normal and routine” – as stated by Ms. Radmacher herself. This was a factor which was considered by the court when determining that the parties had intended to be bound by the agreement.  

The family court also considered the nationalities of the parties in Versteegh v Versteegh [2018] EWCA Civ 1050 to aid in its determination of whether the nuptial agreement should be given effect. The case concerned a Swedish couple, both of whom were born, raised, and educated in the country. As noted by the court, nuptial agreements are both commonplace and binding in Sweden. As such, the judge stated the following: 

“In my judgment, when an English court is presented with a PMA such as the present one; signed in a country where they are commonplace, simply drafted and generally signed without legal advice or indeed disclosure, it cannot be right to add a gloss to Radmacher to the effect that such a spouse will be regarded as having lacked the necessary appreciation of the consequence absent legal advice to the effect that some of the countries, in which they may choose to live during their married life, may operate a discretionary system.” 

Therefore, if both parties are from countries where nuptial agreements are commonplace and enforced relatively strictly, the court will consider this as a factor in favour of enforcing the agreement. If one party is from such a country, whereas the other party is not, then the issue will be more complicated.  

If you are concerned about the validity of your nuptial agreement, contact Vardags today for a free initial consultation with one of our specialist divorce solicitors.  

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