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This is an important qualification. Any prenuptial agreement must, of course, follow the requirements that the courts have laid down for such agreements. Otherwise, the Court will tend to ignore or overlook such prenuptial agreements. Generally speaking, the policy now is to take such agreements into account unless this would be manifestly unjust or unfair.
However, the law is based on the fundamental principle that the Court must retain its discretion to achieve a just result in any financial divorce settlement; in spite of a prenuptial agreement, the courts do still insist on having complete and total discretion to decide how to divide the assets of the marriage in order to achieve fairness and, in deciding what is fair, the starting point is the divorce law on the distribution of the matrimonial assets.
The law itself sets out the guidelines that the courts must still apply in deciding who gets what in any divorce proceedings, even if a pre-nuptial agreement has been entered into before the marriage.
Clearly, a prenuptial agreement that provides, for instance, that on any divorce the husband or the wife will not make any claim on the assets of the other party could quite easily conflict with the requirements of the divorce law. The prenuptial agreement may itself lead to a result that the Court may consider unfair or unjust.
In other words, even where a Court is minded to take account of the existence of the prenuptial agreement and the wishes of the parties as expressed in the prenuptial agreement, the Court will not allow such prenuptial agreement to bring about an unfair result.
© Louise Zambartas
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