Prenuptial and post nuptial agreements
The number of couples seeking to enter into a pre-nuptial agreement is on the up. Osbornes have all the necessary experience in negotiating and drafting a ‘prenup’ document during what can be quite a tense time for the parties involved.
A pre nuptial agreement is a written agreement made by a couple who intend to get married or enter into a civil partnership, which sets out what should happen to their finances in the event of the breakdown of the marriage or partnership. A pre-nuptial agreement is also known as a premarital agreement or an ante nuptial agreement.
Following the Supreme Court’s judgment in the case of Radmacher v Granatino on 20 October 2010 the strength of pre nuptial agreements in England and Wales has been further strengthened. The Court said that:
“The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”
The Law Commission has subsequently recommended that pre-nuptial agreements should be contractually binding in some circumstances, being where the agreement meets the parties’ needs and:
- There has been full and frank financial disclosure by both parties;
- Both parties have had independent legal advice;
- The agreement is signed as a deed at least 28 days before the marriage;
- Both parties sign a statement confirming that they understand the agreement and that if they separate they want to rely on this agreement rather than the law of distribution of matrimonial property at the time of divorce;
- That there have been no breaches of contractual law, such as undue influence or fraud.
The Law Commission’s recommendations are not currently binding law but they do carry considerable weight.
Prenuptial agreements are therefore of great importance and advice should be sought regarding the terms and consequences of such agreements. The general trend in reported cases is that these agreements are in the main being upheld, subject to various checks and balances including in particular the financial needs of each spouse and the children.
Care also needs to be taken when considering opting in or out of property ownership regimes in foreign countries (such as the separation des biens in France) as the implications of these decisions can have an effect on a division of the matrimonial finances. Again, advice should be sought before any such agreement is reached.
Often agreements are not made before the marriage but instead after the marriage has taken place. These post nuptial agreements also often carry a lot of force when being considered by a Court in the event of a separation and again it is important that advice is obtained before any such agreement is reached.
For further information on pre and post nuptial agreements, advice should be sought from one of our specialist family lawyers
Written by Andrew Watson