To Pre-Nup or Not To Pre-Nup : That is the Question

There has always been a question mark over whether Pre-Nuptial Agreements would be enforced by a court in the UK and this is still an area where there is a lively debate.

Leaving aside the effect that such an agreement may have on the romanticism of a proposed marriage this is something that is becoming increasingly important in todays’ society. Many couples are entering second or third marriages which changes their perspective on matrimonial assets and which may mean that they already have children that they want to leave an inheritance to.

Whilst the idea of a Pre-Nup, or an Ante-Nuptial Agreement as the court now calls them, was once the prerogative of those with “big money” things have changed and most couples should now consider whether this is a good idea for them.

It’s like making a will really. All you are doing is making sure that your money/estate goes where you want it to go should the worst happen. It makes sense surely!

A recent case Radmacher [2010] UKSC 42 has changed the likely enforceability of such an agreement. In that case the court set out that the parties ‘should be held to that agreement and that it would be unfair to depart from it.’ This was a big money case but the court made clear that there were principles to adhere to for any ante-nuptial agreement as follows:-

(i) Parties must enter into such an agreement voluntarily, without undue pressure and be informed of its implications (preferably with full disclosure of the assets) and with the benefit of independent legal advice.
(ii) Even if an agreement was prepared in another jurisdiction the important aspect of it was that the parties intended that the agreement should be effective i.e. they expected to be kept to it. After this case the court will infer that parties entering into such agreements will intend to be bound by it.
(iii) Was there anything at the time that would make it fair and just to depart from the agreement that was made? This allows the court to vary an agreement to address the reasonable requirements of any children of the family whilst taking into account the parties wishes and intentions at the time of making the agreement.

In short, an Ante-Nuptial Agreement is more likely now than at any previous time to be held to be enforceable in the UK. It is reassuring to know that the courts will take account of your wishes for your property and children to be set down in an agreement to be relied upon in the unfortunate case of a later separation.

There are proposals for legislation to address this issue but with an election pending that will not progress at this time. The Law Commission has prepared a Draft Nuptial Agreements Bill so let us hope that the next Government will take this further. A clear Act will serve us well in addition to developing case law. Resolution, the national organization of family lawyers committed to non-confrontational divorce, separation and family problems, supports the binding nature of these agreements. Let us hope that the law can progress further to respond to this by way of legislation.

For more detailed advice on this or other family issues click here to email Jeanette Birch
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