Pre-nuptial agreements - are they worth the paper they are written on?

A pre-nuptial agreement (or ‘pre-nup’ as they are often called) can be made between a couple before they marry, and it deals with how their assets and resources would be treated if they were to divorce or dissolve a civil partnership. Currently, pre-nuptial agreements are not strictly binding in English law. In other countries, such as USA and most of Europe, pre-nups are common enforceable contracts.

There have been a number of cases which have improved the position of a pre-nuptial agreement, so they are now broadly recognised in English courts and the Law Commission is currently considering drafting legislation that would make them strictly enforceable in English law.

Andrew Stynes is an Associate and a Head of our Family Team. He says, “The current situation is that under English Law a pre-nuptial agreement is ‘highly persuasive’, but they are being given increasing recognition by the courts in divorce cases. In a dispute before a court where a pre-nuptial agreement was made, the court must be shown a very good reason for going against the terms laid out.”

Who needs a pre-nuptial agreement?

Pre-nuptial agreements can be useful for any couple, not just the rich and famous. They can be particularly useful for second marriages.

It can be awkward to suggest a pre-nuptial agreement with your partner, but think of it as a safety measure in case the worst happens, similar to making a will.

Protection for both of you

There are a number of caveats that provide protection for both people. These include:

  • Both people must have had the benefit of independent legal advice
  • Both people must fully disclose all relevant information about their financial circumstances
  • The financial agreement must be entered into a reasonable period before the marriage (it is also possible to make a post-nuptial agreement, after the wedding ceremony)

But do they stand up in court?

A Supreme Court decision in 2010, has led to courts upholding the terms of a pre-nuptial (or post-nuptial) agreement if the following criteria apply:

  • Both people freely entered into the pre-nuptial agreement
  • Both people had a full appreciation of the implications of the pre-nuptial agreement when they entered into it
  • It is fair to uphold the pre-nuptial agreement in the circumstances prevailing it

However, please bear in mind that an agreement would not be enforceable if it does not take into account any relevant dependents (for example children) of the couple.

 

Our Family Team are happy to discuss any issues that this raises for you and we offer a free initial meeting or chat on the phone. If you have any questions, you only have to ask us at Frettens.

Please call 01202 499255 or 01425 610100 and Andrew or a member of the team will be happy to chat about your situation and your particular requirements.