PRE-NUPTIAL AGREEMENTS
A Pre-Nuptial Agreement is a formal written contract which is entered into prior to getting married. They are recognised in many countries outside of the UK, however in England & Wales they are not enforceable as a binding agreement and in the event that a marriage breaks down and the matter goes before the Court it is the Judge’s discretion as to whether to take into account the terms of the Pre-Nuptial Agreement when deciding how to divide the matrimonial assets.
Despite this, it has become more common for people to enter into a Pre-Nuptial Agreement prior to getting married particularly by people who have significant assets. Over the last 10 years, Judges have attached increasing weight to Pre-Nuptial Agreements and the recent decision of the Court of Appeal in the case of Radmacher-v-Grantino has proved this. In this case the Court indicated that in future cases, Judges should give weight to contracts which parties had freely and knowingly entered into and a result, it seems very likely that more weight will be given to Pre-Nuptial Agreements in the future unless there are unusual circumstances, or particular reasons as to why they should be disregarded.
To add more credibility to a Pre-Nuptial Agreement, it is important that both parties take independent legal advice upon its terms and the agreement must make provision for children either living or who may be born in the future. Both parties should also provide full financial disclosure as to their position. It is important that the agreement is drawn up at least 21 days prior to the marriage taking place. It is interesting to note that in the case of Radmacher, the Pre-Nuptial Agreement did not incorporate many of the guidelines referred to above, despite this however the Court of Appeal still felt that the terms of the agreement should have a very significant impact when making their overall decision in this case.
Ultimately, this decision is likely to be hailed as extremely good news for wealthy men and women across England and Wales when they previously may have been reluctant to marry knowing that their wealth was unlikely to be protected. It will be interesting to see how this area of law develops further and the decision may well be challenged in the House of Lords.
Claire Parsons, Associate Solicitor, Coole+Haddock Solicitors
Telephone: 01903 534507 or email: claire.parsons@coolelaw.co.uk
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