Following a recent decision in the Court of Appeal, in which a pre-nuptial agreement entered into by a German heiress and her husband was held to be enforceable, wealthy families worried about preserving family assets in the event of a divorce should certainly consider advising betrothed family members to create a pre-nuptial agreement. Where the marriage or civil partnership has already taken place, a post-nuptial agreement may be worth considering to achieve the same end.
Pre-nuptial agreements have been commonplace in the USA for many years, but have not been widely used in the UK for the simple reason that previously the courts have refused to enforce them. As recently as December 2008, the Privy Council, dealing with a 'big money' case, commented that it was for Parliament, not the courts, to change the status of prenuptial agreements.
Most European countries recognise pre-nuptial agreements and Resolution - First for Family Law (formerly the Solicitors Family Law Association) has called on the Government to enact legislation in the UK to make such agreements enforceable in the UK courts.The possibility of creating formal legislation to govern pre-nuptial agreements is under discussion in Governmental and legal circles.
For a 'pre-nup' to be enforceable, it should be freely entered into and with the benefit of legal advice on both sides.
For more information on the process of divorce, see The Process of Divorce.
The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.
Post-Nuptial Agreements - the Basics
More than 40 per cent of marriages end in divorce (in England and Wales more than 125,000 couples divorce annually) and when one in five of all men and women seeking to end their marriage have already been through one divorce, it is perhaps not surprising that more and more people are seeking to safeguard their individual positions by entering into a pre-nuptial agreement prior to marriage or securing protection by drawing up a post-nuptial agreement at a later time.
For couples who are already married, particularly those with children, drawing up a post-nuptial agreement, which is agreed upon by both as being a fair statement of their wishes, can prevent a lot of potentially harmful stress in the event that the relationship turns sour.
To be binding a post-nuptial agreement must be seen to be fair. When considering whether to enforce a post-nuptial agreement, the court has regard to:
- the conduct of the parties leading up to the agreement;
- the circumstances surrounding the making of the agreement;
- whether there was undue pressure by one side or exploitation of a dominant position to secure an unreasonable advantage; and
- the interdependence and mutual influence that existed between the parties.
For more information on the process of divorce, see The Process of Divorce.
