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We often used to hear comments about Pre-Nuptial Agreements such as “Pre-Nups aren’t worth the paper they’re written on” or “They’re only for the rich”.  This is no longer the case and provided certain safeguards are observed, Pre-Nups will be upheld in a Court of Law. They are not just for the very wealthy and will often be used, for example, where a spouse-to-be wants to protect a particular asset such as inherited business or assets acquired prior to the marriage or wants to leave most of their wealth to their children from a former relationship rather than to their spouse-to-be.

Since the landmark Court ruling in Radmacher v Granatino in 2010, Pre-Nups have generally carried much more weight in divorce cases, as long as:

• both parties received independent legal advice,
• the agreements contain reasonable proposals for financial support for the financially worse off spouse and children,
• both parties provided full and frank disclosure of their assets and income, and
• the agreement is finalised well before the wedding, giving both parties enough time to consider and digest the terms.

As things currently stand, however, the Courts still do have the discretion and power to either uphold the Pre- Nup or make an Order for a different financial outcome, although this has been under review for some time.

The Law Commission has recently proposed that Pre-Nups should become legally binding in England and Wales.  If this is implemented, the Commission’s proposal would create a type of contract similar to Pre-Nups known as a “Qualifying Nuptial Agreement” which will enable couples who are engaged or who are already married to decide how their property will be split if they divorce. To ensure the Qualifying Nuptial Agreement is binding, both parties’ financial needs must be covered by it, as well as their financial responsibilities to any children, they must also have disclosed full details of their finances and each obtained independent legal advice.

Qualifying Nuptial Agreements could go a long way to make the often stressful, expensive and unpredictable experience of divorce a much more positive experience and eliminate the myth that Pre-Nups have no effect.   It is therefore essential that you obtain expert legal advice on your position.

Vijaya (Asha) Sumputh  –  Family Law solicitor at Curwens LLP  –  This email address is being protected from spambots. You need JavaScript enabled to view it.

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