What is a pre-nuptial agreement?
Pre-nuptial and pre-civil partnership agreements are formal agreements made prior to a marriage or civil partnership. The agreement records which assets are owned by each party at the time of the marriage, or civil partnership and details how the assets should be distributed in the event of a divorce or dissolution of the civil partnership.
Are pre-nuptial agreements binding on a court?
The short answer is ‘no’. However, following the important Supreme Court case of Radmacher v Granatino, although the court is not obliged to give effect to pre-nuptial agreements, it must give appropriate weight to such agreements. Full weight will only be placed upon the agreement if the parties entered into the agreement of their own free will, without undue influence or pressure and were fully informed of the implications of doing so, unless it can be shown that in all the circumstances it would not be fair to hold the parties to the agreement.
What is the benefit of a pre-nuptial agreement?
The benefit of entering into a prenuptial agreement is that if the marriage breaks down, on divorce, there is less acrimony and the legal formalities can be tied up quickly, without the need of costly litigation.
What needs to be done to ensure that a pre-nuptial agreement is upheld?
- Each party should obtain independent legal advice from a specialist family lawyer who will be able to ensure that the implications of the agreement are fully explained and understood.
- The parties should each disclose to the other full details of their income and assets so that the decision to enter into the agreement is made with full knowledge of all the material facts.
- The agreement should be entered into at least 21 days before the marriage to show that there is no evidence of duress or undue influence.
- The parties should ensure that the agreement is fair and realistic.Whether it is fair and realistic will depend upon the circumstances of each particular case.Issues which may be taken into account are the needs of the parties, whether the agreement provided adequately for any children of the family, the length of the marriage and therefore the length of time that has passed since the parties entered into the agreement and whether substantial assets have been acquired during the marriage.