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What is a Pre-Nuptial Agreement?

May 19th, 2016

 Paralegal, Laura Unite explains…

‘Pre-nup’ is a word thrown about in American films and TV shows. They are fairly standard within the American legal system (and other jurisdictions in Europe) although they are not yet part of English statute law. But what are they?

A pre-nuptial agreement is a contract entered into before marriage to settle and regulate financial rights and obligations in the event of divorce. Basically: who gets what, how, when and for how long.

One of the main reasons that they are not yet legally binding in England and Wales is that it takes away the power of the courts to decide what is fair. One party could be left in a poorer position than they would have been in had the courts decided, as the current presumption is a 50:50 split.  On the flip side, as long as both parties understand and agree the terms should the courts not respect autonomous decisions made between themselves?

The case of Radmacher v Granatino (not an American case but one between a French husband and a German wife) gives us certain criteria to consider:-

  • Is any reason to doubt the weight of the agreement, such as duress misrepresentation or fraud? Have both parties had independent legal advice and full disclosure of all assets?
  • Was the agreement entered into by parties from a country where they are enforceable? If so, then more weight would be attached to it in England and Wales.
  • Is the agreement fair? Was it entered into freely with a full understanding of what it would mean if the couple divorced? Did it take into account the needs of any children or changes in circumstances? These all need to be considered fully.

Ultimately, the courts are more likely to uphold a pre-nuptial agreement where each party freely entered into it, intended it to have legal effect and understood its implications, and the circumstances at the time of the marriage breakdown would not make it unfair to hold them to it.

Given the above, why enter into a pre-nuptial agreement? The agreement can be heavily negotiated before marriage, it takes away some of the animosity that inevitably arises during divorce proceedings and saves money on legal costs in arguing over assets. Further, such negotiations provide an opportunity to openly discuss the goals and plans of each party in a comfortable setting. It creates greater certainty over division of assets than if the courts decide and parties can also ensure that some assets may be preserved for others, such as children from a previous relationship.

If you would like more advice on pre-nuptial agreements and how one could work for you, our family law solicitor, Jenny Russell, is on hand to help you. Call us on 01494 773377 or email us at hello@lennonssolicitors.co.uk

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