The treatment of Personal Injury damages in divorce proceedings; the risks, and the measures that every practitioner should consider
According to recent media reports, a husband has been charged with murdering his wife to ensure he was not bound by the terms of their prenuptial agreement, possibly panicked by the recent judgment of the Supreme Court in Radmacher.
In a twist reminiscent of a Hollywood storyline, BA pilot Robert Brown is accused of murdering his heiress ex-wife, Joanna. It is claimed he feared that the prenup they signed in 1999 would now be enforced, depriving him of a share of her property development fortune.
Thankfully, very few spouses resort to the tragic and extreme measures with which Mr Brown has been charged. Furthermore, Mr Brown’s alleged motivation is wholly misguided. A specialist family lawyer would have advised a husband or wife in his circumstances that Radmacher does not make prenups automatically enforceable. We are not expecting to see a string of wealthy spouses triumphantly waving their prenups in divorce cases as an iron-clad defence to claims made on their riches in light of the Judgment.
The Supreme Court has said a prenup needs to be fair to be enforceable. Fairness applies at the time the prenup is entered into. There must have been proper disclosure and the document must have been signed without undue influence or pressure. Fairness also operates when assessing the outcome: in this country, a prenup is less likely to be upheld if circumstances have changed significantly since it was signed, so that it is no longer fair. Relevant changes might conceivably include the birth of a child, the acquisition of family property, or a change in marital roles, amongst the huge number of contingencies more likely to occur in a marriage the longer it lasts.
The law has long recognised that a person cannot benefit from his or her crime. So, there are financial consequences that follow on from a conviction for murder. A joint tenancy is automatically severed when one co-owner murders the other. The concept of survivorship no longer applies. In addition, a convicted murderer is not permitted to any benefit he would otherwise receive under his victim’s Will or on intestacy. These principles would put certain assets beyond Mr Brown’s reach, if he is ultimately found guilty of murdering his wife, irrespective of the terms of the prenuptial agreement between them.
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