Prenup judgement highlights why even a badly drafted one is still a good idea

This recent judgement on a flawed prenup is a great example of not only why some prenups fail, but also why they are still worth entering into, even if they are not ultimately upheld as was the case here. 

In summary, the wife was an extremely wealthy American heiress, and the husband was a poor hotel concierge. The terms of their prenup meant that the husband would get nothing from the wife on their divorce. He would in fact have to walk away with sizeable debts. 

There were various factors – including the fact that the prenup did not meet the husband’s needs – which meant that the judge decided not to hold the parties to their agreement. 

However, the judge did not completely ignore the existence of the prenup. The intention of the parties to enter into a prenup was evidence enough for both the legal teams and the Judge to conclude that the wife’s assets should be viewed as non-marital, and that the husband shouldn’t share the wife’s wealth. The husband’s claim was limited just to his needs, despite the parties having two children, and an averagely long marriage of just over a decade.  It was also ordered that a sizeable chunk of the money paid to him by the wife, should be paid back to her on his death. 

A well drafted prenup would have set out and defined what the husband’s needs were – perhaps on a more conservative basis than the Judge ordered here. If all the other requirements had been met (such as the husband receiving appropriate specialist independent legal advice) then the parties could have avoided the stress and considerable legal fees (reported to be £488,000 between them), that were incurred as a result of this dispute. 

Ipekci v McConnell [2019] EWFC 19 Judgment of Mr Justice Mostyn refusing to give effect to a prenuptial agreement in circumstances where inter alia it failed to meet the Husband’s needs and there had been no independent legal advice.