Is your nuptial agreement invalid? The vitiating factors which undermine a contract

Reasons why your prenup might be invalid

Prenuptial and postnuptial agreements are not automatically binding in England and Wales. The family court will only give effect to a nuptial agreement if it meets certain legal criteria and is fair in the circumstances.

One of the key reasons a court may refuse to uphold a nuptial agreement is the presence of a vitiating factor - a legal flaw that undermines the enforceability of a contract.

What is a ‘vitiating factor’?

A vitiating factor is something which affects the enforceability of a contract, meaning that it may be made void.  In essence, if a party can successfully prove that a vitiating factor is present, it is likely that the nuptial agreement will not be enforced by the family court.  

As per Radmacher, the first question the court will consider when dealing with a contested nuptial agreement, will be whether any of the ‘standard’ vitiating factors are present, namely: 

1. Duress 

2. Fraud 

3. Misrepresentation 

In addition, the court held that “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.” 

If you have entered into a nuptial agreement which either you or your spouse believe to be invalid, contact Vardags today for a free initial consultation with one of our expert divorce solicitors.  

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