Pre-nuptial Agreements
Pre-nuptial agreements were initially used prior to the Married Women's Property Act 1882, to protect the property of women of wealthy families who were thought to be marrying 'bounders' or 'cads' (who would no doubt run off with the money) by transferring their properties to trustees to hold on their behalf. That was obviously considered necessary at the time.
However, now in the 21st century, pre-nuptial agreements have received much press coverage, and are possibly again a sensible option in our current society. However, the question remains, 'How far are they binding in our Courts?'
Since October 2000, we have had incorporated into our laws the Human Rights Act, linking us to European legal precedents in a way that means the European practice of honouring pre-marital agreements will be considered, but not necessarily acted upon by any court looking at such an agreement.
A 2010 Supreme Court test case between the German heiress Katrin Radmarcher and Nicholas Granatino, indicated that such agreements can "in the right case" have decisive weight in a divorce settlement. The case found that for a pre-nuptial agreement to be recognised by the Courts:
Both parties must enter into it of their own free will
Without undue influence or pressure and be informed of its implications.
It is important that the document is properly drafted and witnessed.
What Emmersons Solicitors can do
At present, any such contract entered into by a couple is a factor the court can consider when making a financial order on the ending of a marriage/civil partnership. It cannot, however in English Courts, override the court's discretion to make different financial arrangements on divorce/dissolution. But then, there are various steps the parties can take to ensure their premarital agreement is given as much weight as possible, and our Family and Divorce lawyers and Estate Planning Lawyers can help you.
The issues
If you would like to consider drawing up a pre-nuptial agreement, we can advise and assist you, in looking at the following areas.
1. The couple planning to marry/register a civil partnership should:
- Seek their own independent legal advice before entering into the agreement.
- Fully disclose to the other a true picture of their financial means and circumstances, with a summary of such means being attached to the agreement.
- Bear in mind that, on divorce or dissolution, a court looking to review an arrangement will want to see if it leads to a fair division, on a basis of equality and if not, why not?
2. The Pre-nuptial Agreement should:
- Make clear how any assets each party is taking into the marriage/civil partnership are to be held in future and how they will hold any new assets acquired.
- Address how the equity in the home will be divided and who will occupy it if the relationship breaks down.
- Address how assets are to be divided in the event of the death of either party.
- Be entered into not less than 21 days before the marriage/civil partnership ceremony.
Pre-nuptial agreements are of particular importance to those entering into second marriages who wish to protect their assets and crucial for couples who have already entered into such agreements in other countries where such agreements are enforceable.
Please contact us if you would like more information about making a pre-nuptial or pre-civil partnership agreement.
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