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Pre-Nuptial Agreements – what’s the point?

What is a ‘Pre-Nup’ I often get asked. Well, it is an agreement made between a couple prior to marriage or civil partnership, seeking to regulate any financial liability and responsibilities that are likely to arise should the relationship break down irretrievably. An agreement can contain provisions for assets, income, pensions, maintenance and liabilities.

In my role as a Solicitor in the Family Law Department it is not often that I see client’s at this stage of the relationship as, unfortunately, by the time most clients wish to instruct me it is because the marriage or partnership is coming to an end.

So, why should you consider entering into one of these agreements when you are madly in love and planning the happiest day of your life? It’s not exactly romantic! Well, even if you do not perceive yourself to be exceptionally wealthy, there may be some assets or monies that you feel should be protected to just in case the relationship was to break down.  A Pre-nuptial Agreement can provide reassurance to someone who may have been through the divorce process before, has children from a previous relationship or is likely to come into some inheritance which they wish to protect.

But will this agreement be legally binding and be enforceable in court if I need to rely on it? the answer was previously no, however a landmark decision was made in the case of Radmacher v Granatino (2010) by the Supreme Court that in certain cases such agreements can have ‘decisive weight’ and ‘it would be natural to infer that the parties entering into agreements will intend that effect be given to them’.

Furthermore, the Law Commission commenced a Project in October 2009 to examine the status and enforceability of ‘marital property agreements’. The project continues and so it is unclear at this time whether the Law Commission will make Pre-nuptial Agreements enforceable by Law.

Whilst other Countries have adopted the use of Pre-nuptial agreements, the debate in England and Wales continues. The most opposed seem to be those who are highly religious and their argument is simple, surely by entering into one of these agreements to plan for a divorce settlement prior to marriage you are jeopardising the whole notion of marriage being a life long union, ‘til death do us part’.

In real terms, Pre-Nuptial Agreements are carrying more weight in the Family Courts and may well become legally enforceable in the future. As long as the agreement was entered into freely, with both parties having understood the implications, both parties made full disclosure of financial means and the agreement is fair then it is likely that the court would give effect to the agreement unless it is considered unfair to do so.

Here at Eric Robinson we can advise you and prepare an agreement on your behalf, if you require any further information please do not hesitate to contact a member of the Matrimonial Department Team.