Pre-Nuptial Agreements
"The Divorce Lawyer says..."
"With this ring (and with the benefit of this Pre-Nuptial Agreement) i thee wed..."
Unromantic? Certainly. Sensible? Possibly.
A Pre-Nuptial Agreement is an agreement in writing made either before marriage or during a marriage in contemption of separation.
There are many circumstances in which people who are thinking of getting married might wish to contemplate a Pre-Nuptial Agreement. Examples are:-
- Where one or both parties have been previously married and they wish their assets to go to their children rather than the other spouse
- When one party brings into a marriage substantially more than the other
- Where both parties bring into a marriage substantial assets which they wish to keep separate.
Is a Pre-Nuptial Agreement enforceable?
The position at law is ambivalent. In most other countries they are enforceable. Judges have taken a view in this country that the court should always be able to intervene where it considers it necessary.
If, for instance, the parties enter into a Pre-Nuptial Agreement and many years later after the wife has given up her career to look after several children, the considerations which applied before the marriage should no longer apply.
If, however, the marriage is only a short marriage then it will certainly help define the assets that each brought into that marriage and strongly influence where those assets should go upon separation.
Many people have now heard of the case of White –v- White which is one of the few family law cases that has gone to the House of Lords. The court in that case introduced some novel concepts including:-
- A distinction between inherited assets and other assets.
- A recognition that the contribution (either in money or effort) should be recognised. It is well established that a wifes contribution in looking after a home and bringing up children is an equal contribution.
On the 3 January 2008 the Court of Appeal made an important decision in the case of Crossley v. Crossley. The case has been well publicised in the newspapers. Unlike most people it involved two people with substantial fortunes which were all established before they met. It was a short marriage. They had no children together. They had both seen experienced lawyers and had drawn up a Pre-Nuptial Agreement agreeing, amongst other things, that neither party would have any financial claim on each other.
Despite this the wife issued an application at court for financial relief. The Judge considered that “if ever there was to be a paradigm case in which the court would look at a Pre-Nuptial Agreement as not simply one of the peripheral factors, but as a factor of magnetic importance this case was such”.
The court exercised their discretion under Section 25 of the Matrimonial Causes Act and ruled that the wife would have no claim.
The Judge referred to the “developing view that Pre-Nuptial Contracts were of growing importance. The matter demonstrated the discretionary power of a Judge to require a party to show a court why a contractual agreement should not rule the outcome of an ancillary relief claim”.
