If you are entering into a marriage or civil partnership, you may want to give yourselves clarity about what will happen financially if you separate. It can be tricky to untangle shared finances, and even more difficult if you have assets you want to protect or if you are entering into a second or subsequent marriage. Some couples therefore put in place a pre-nuptial agreement before they marry or register a civil partnership to set out how their assets will be dealt with if they get divorced.
Pre-nuptial agreements are not formally recognised by UK law, which means that the family court does not have to follow what they say if you get divorced (or dissolve your civil partnership). The family court must agree that any financial settlement is fair, and it may or may not agree that what you agreed should be put into place.
However, the number of people entering pre-nuptial agreements is growing and, as a result, the way in which they are dealt with by the court has evolved through a number of high profile cases, most notably the case of Radmacher v Granatino in 2010 which involved a couple who married in London. They entered into an 'ante-nuptial agreement’ in Germany three months before the marriage at the request of the wife (on the basis she would receive a significant portion of family money if an agreement was signed). The couple separated in October 2006 after being married for 8 years, and the High Court initially granted the husband a settlement of £5.5 million. The wife appealed, on the basis that the agreement should have been further taken into account. Following appeals through the Court of Appeal and ultimately into the Supreme Court, Lord Phillips gave a judgment whic set out that the court should give effect to a nuptial agreement if:
1. it has been freely entered into by each party
2. the parties have a full appreciation of the implications of the agreement, and
3. it is not unfair to hold the parties to their agreement unless in the circumstances prevailing.
Following this decision, pre-nuptial agreements are considered on a case-by-case basis. The weight any agreement will be given is an evolving question with the court taking into account the above factors. However, it is clear that a pre-nuptial agreements stands a better chance of being given weight if it was signed sufficiently in advance of your marriage/civil partnership, following full financial disclosure and independent legal advice for each party and providing it is not unreasonable in its terms.
In 2014, the Law Commission published a report on pre-nuptial agreements and recommended that they be given enforceable contract status if financial responsibilities (in respect of the separating couple and any children) have been taken into account. The government has not yet taken any action to change the law, but it seems likely that in the meantime the family court will take more, rather than less, account of pre-nuptial agreements.
We can help put a pre-nuptial agreement in place, and have a team of both solicitors and mediators who can advise you on the best way forward.
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