England Inching Towards Prenuptial Enforcement

The English courts yesterday took a further step towards eventual enforcement of prenuptial agreements.

In Crossley v. Crossley, the spouses had signed a prenuptial agreement in England. The wife asked the divorce court to ignore it because her husband had failed to tell her of the full extent of his fortune. He retaliated by successfully asking the court to disregard normal divorce procedures and to “short-circuit” the case, because the marriage was short and childless, both parties had independent wealth and they had signed a prenuptial agreement.

The Court of Appeal upheld the short-circuit procedure. Lord Justice Thorpe said that if ever there is to be a paradigm case in which the court will look to the pre-nuptial agreement as not simply one of the peripheral factors of the case, but as a factor of magnetic importance, this was just such a case.

The Court of Appeal appears to have sent out a clear signal that in such cases the prenuptial agreement is likely to be the paramount factor, and there will be little opportunity to argue other issues.

Lord Justice Thorpe also called for legislation to clarify the status of prenuptial agreements. He admitted that it bothered him that this decision may have already elevated their status beyond what current legislation provides and he complained – most justifiably, in this writer’s opinion – that the British Parliament seems “quite incapable of dealing with such potentially controversial moral matters as reform of the divorce system,” leaving the courts to keep up with the “ever-changing Zeitgeist.”