Pre-nuptial agreements - A step closer to becoming legally enforceable?
Pre-nuptial agreements - A step closer to becoming legally binding?
A pre-nuptial agreement is a formal agreement entered into before a marriage or civil partnership which sets out who owns what at the time of marriage and also how the couple envisage that those assets should be divided if there is a divorce or separation.
A post-nuptial agreement is exactly the same, but entered into after the marriage or civil partnership. Currently, neither form of agreement is legally binding in England and Wales. However, following the landmark Supreme Court case of Radmacher v Granatino, the Court will now attach considerable weight to these agreements and hold parties to the terms agreed unless it can be proved that:
- the agreement was not entered into freely by each party
- the parties did not have a full appreciation of the implications of the agreement at the time of signing it
- it would be unfair to hold either party to the agreement
The Law Commission has drafted proposals which has the potential, if implemented, to create a new type of contract similar to a pre or post-nuptial agreement known as “qualifying nuptial agreement”. The commission, a statutory independent body that advises the Government on law reform, recommends that “prenups” should become legally binding subject to stringent qualifications. One requirement is that at the time of signing both parties must disclose material information about their financial situation and have received independent legal advice from a family law specialist.
Crucially, however, the Commission says that a pre or post-nuptial agreement would only be enforceable “after both partner's financial needs, and any financial responsibilities towards children, have been met”. They also could not determine childcare arrangements.
The report states: “It will remain open to spouses to make agreements about financial needs, but such terms will not be contractually enforceable and will be subject to the courts’ scrutiny for fairness as they are at present. A qualifying nuptial agreement will not remove the parties’ ability to apply for, and the courts’ jurisdiction to make financial orders to meet their financial needs.”
If you are considering a prenuptial agreement, our family lawyers at Leeds Day Solicitors can draft a bespoke agreement to suit your specific circumstances. Our team includes Resolution accredited and collaborative family law specialists. We are able to see clients at any of our 3 offices in Huntingdon, St Neots and St Ives.
For initial advice or to arrange a meeting with one of our family law solicitors, contact Simon Thomas on 01480 474661 or send on email to firstname.lastname@example.org. If you make an appointment before the end of March 2014 then your first 30 minute consultation will be free of charge.