Pre-Nuptial Agreements

A Pre-Nuptial or pre-marital Agreement is a contract entered into between two people before they marry or form a civil partnership. It is particularly worth considering in circumstances where financial resources are imbalanced or when it is necessary to consider the needs of children from a previous relationship. It is worth thinking about these agreements in the same way as life or critical illness insurance. It is something that you hope you will never need but it is there to protect you or your family if the worst happens.

The law relating to Pre-Nuptial Agreements has developed following the Supreme Court decision in Radmacher v Granatino in October 2010. The key points to consider are:

• When considering the role of a Pre-Nuptial Agreement in a financial claim on divorce, the starting point is the Matrimonial Causes Act which obliges a judge to consider all the relevant circumstances of the case when deciding how to divide the parties' finances on a divorce.

• No agreement between the parties can override the legislation or prevent the judge from deciding on the appropriate division of assets on a divorce. This means a Pre-Nuptial Agreement cannot stop a spouse applying to the court for financial provision from the other spouse. Any "waiver" of the right to apply to the court for financial provision in an agreement will not be effective.

• The significance of a Pre-Nuptial Agreement is as a relevant circumstance of the case, to be weighed by the judge. A Pre-Nuptial Agreement will have a substantial impact on the judge's decision in many cases. The Supreme Court said in Radmacher v Granatino 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.

If a relationship does break down at a later stage, the agreement may minimise the distress and expense at that point.

It is best to enter into an agreement at the very least three weeks prior to the wedding or civil partnership and we would therefore recommend that you contact us at least two or three months prior to the ceremony to allow sufficient time for negotiations prior to the agreement being finalised.

It is also possible to have a Post-Nuptial Agreement. This is similar to a Pre-Nuptial Agreement but entered into after marriage, rather than beforehand. Again, this can help to avoid acrimonious discussions in the event of a subsequent divorce or separation.