Case No. BV20D0029

from which the following essential propositions can be drawn:i)There is no material distinction between an ante-nuptial agreement and a post-nuptial agreement (para 57).ii)If an ante-nuptial agreement, or indeed a post-nuptial agreement, is to carry full weight, “what is important is that each party should have all the information that is material to his or her decision, and that each party should intend that the agreement should govern the financial consequences of the marriage coming to an end” (para 69).iii)It is to be assumed that each party to a properly negotiated agreement is a grown up and able to look after himself or herself (para 51).iv)The first question will be whether any of the standard vitiating factors, duress, fraud or misrepresentation, is present. Even if the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have. But 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 (para 71). The court may take into account a party’s emotional state, and what pressures he or she was under to agree. But that again cannot be considered in isolation from what would have happened had he or she not been under those pressures. (Para 72). v)The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement. (para 75).