It is rumoured that along with the election loss, Donald Trump may also have to deal with the breakdown of his marriage and a potential legal battle over his pre nuptial agreement.

Former White House aide and political adviser to Mr Trump, Omarosa Manigault Newman, has stated in her 2018 book Unhinged….an insider’s account of the Trump White House, that “in my opinion Melania is counting every minute until he is out of the White House so she can divorce him”.

When Donald Trump married his third wife, Melania Knauss, he had already amassed a huge fortune and was a successful businessman and television star.

In preparation for his third marriage Donald Trump entered into a pre nuptial agreement, just like he did with his previous two wives. It is interesting to note that both former Trump wives have successfully won applications at Court to set aside the terms of their pre nuptial agreements, which could be a sign of things to come in respect of the agreement entered into by Melania.

In the UK the leading case in respect of the enforceability of pre nuptial agreements is Radmacher v Grantanio.

The Supreme Court considered the weight that should be given to pre nuptial agreements when exercising its discretion under Section 25 of the Matrimonial Causes act 1973 in this case.

The majority of the Supreme Court held that “the Court shall give effect to a pre 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 the agreement”.

The weight to be attributed to a pre nuptial agreement in financial remedy proceedings will therefore depend on the facts of each individual case and the three stage fairness test as set by the Supreme Court in Radmacher v Grantanio.

The three stage test is as follows:

1. The agreement must be freely entered into – both parties must enter into the agreement of their own free will, without undue influence or external pressure. The agreement would be unlikely to be upheld if there was evidence of duress, fraud or misrepresentation. Further, the agreement is unlikely to be upheld if there was evidence of exploitation of a dominant party against the financially disadvantaged party.

2. The parties must have full appreciation of the implications of the agreement – it is desirable for both parties to have received Independent legal advice in regards to the implications of the terms of the pre nuptial agreement that they are entering into. In addition, full and frank financial disclosure between the parties is usually desirable.

3. It must be fair to hold the parties to their agreement in the circumstances prevailing – the Supreme Court emphasised that the fairness test would depend on the individual facts of the particular case and suggested that it would not be desirable to set in stone rules that would affect the flexibility that a Court requires in order to reach a fair settlement. In general terms, the longer a marriage lasts after a pre nuptial agreement has been entered into, the greater the likelihood that it may not be fair to hold the parties to the terms of the agreement due to unforeseen changes in the family’s circumstances, such as the birth of children etc.

At MSB, our expert Family team regularly prepares pre nuptial and post nuptial agreements for our clients and provide advice on those which have been prepared by other lawyers.