Pre-Nuptial Agreements

A Pre-Nuptial Agreement is an agreement in writing made before marriage in contemption of separation.

What is the purpose of a Pre-Nuptial Agreement?

There are many circumstances in which people who are thinking of getting married might wish to contemplate a Pre-Nuptial Agreement. For example:

• 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?

Pre-nuptial agreements are not automatically legally binding but the courts are allowing more weight to them and if properly done they are likely to be upheld by the court.

This area of law is currently governed by the decision in Radmacher v Granatino (October 2010); a court will uphold a pre-nuptial agreement that is freely entered into by both parties with a full appreciation of its implications, unless in the circumstances it would not be fair to uphold the agreement.

There are positives and negatives of pre-nuptial agreements:-

Positives:

• The parties can make it clear in advance what property is to be available to be shared in the event of divorce.
• Parties can protect their assets, for example, inherited wealth or gifts received from a third party can be ring-fenced.
• It can reduce the uncertainty, time and stress of later contested financial proceedings.
• It can provide some protection from debt i.e. a party comes into the marriage or subsequently falls into debt, a nuptial agreement can be used to protect the other parties assets from being utilised to settle that party’s debts.
• It can provide some protection for businesses for example, if one partner has an interest in a family business or a small private business, a nuptial agreement can protect that interest and prevent disruption to the business on the future breakdown of the marriage.

Negatives:

• It may penalise an economically weaker party for example, if non matrimonial property grows significantly over time, will the economically weaker party be giving up a share of a much greater sum than originally expected.
• A nuptial agreement cannot predict what will happen in the future, however a review clause contained within the same can help to maximise the chance of a court upholding the terms. This can however mean that more fees will be incurred in the future on any review date.
• Whilst practical on the surface, it is unromantic; it is not a bunch of flowers or a love letter! It can often reflect parental wishes as opposed to the couple’s wishes with improper pressure so that a party feels they have no choice but to enter into the agreement which may impact upon the validity of the agreement.