Do I need one?

With high profile cases such as the Mills and McArtney raising the profile of acrimonious settlements, it is little surprise that couples thinking of marrying would now give consideration to some sort of pre marital prenuptial agreements.

Who should consider a pre or post-marital/partnership agreement?

Agreements of this nature are particularly worth considering if:-

• One or both of the parties to the relationship are more mature.
• Where this may be his second marriage or partnership.
• Where one party brings significant assets to a relationship or there is an imbalance in the financial provision to be made by both parties.
• Where provision needs to be made for children or dependants from a previous relationship.
• Where you wish to influence how assets may be divided between you should the marriage or civil partnership fail.

When should we consider these types of agreements?

As soon as possible. The longer the agreement is in place prior to a marriage or civil partnership being entered into the better. However, agreements entered into after marriage or Civil Partnership can still have legal effect.  In order for an agreement of this nature to be made binding there needs to be independent legal advice for both parties, full and frank financial disclosure and no duress.  If a pre-nuptial agreement of this nature is entered into at the church door then it is open to an allegation that one party or the other has been under a level of duress to enter into the agreement.

Are pre or postnuptial agreements binding?

Prenuptial agreements are common place on mainland Europe but the courts in England and Wales have always been reluctant to have their overall discretion as to how assets should be divided upon divorce tied in by an agreement reached between two parties prior to the marriage taking place. 

A gradual shift towards recognising the validity of pre and post nuptial agreements was brought to a head by the case of Radmacher v. Grantino. This case went to the highest court in the land, The Supreme Court, purely on whether a pre-nuptial agreement entered into by the parties in Germany three months before they married was applicable in law in England and Wales.

The Supreme Court decided in October 2010 that it was natural to infer that parties entering into agreements of this sort will intend that legal effect would be given to those agreements. Unless the outcome of the pre-nuptial agreement was unfair to any children of the marriage, in which case the court could still ignore or vary the agreement, the agreement would be upheld by the court.

How do I found out more?

Please contact any member of the family team who would be able to discuss the options available with you.

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