The Supreme Court in Radmacher v Granatino in 2010 decided that the old rule that post and pre-marital agreements were contrary to public policy was obsolete and should be discarded. It is therefore the expressed wish of the Courts that premarital agreements should become legally binding and enforceable, subject to certain conditions. It is, nevertheless, still the case that it is not possible for a Pre-nuptial agreement to prevent the Court from subsequently dealing with the issue of marital and premarital assets. It is still possible for one party to a Prenuptial Agreement to argue in any financial proceedings that he or she should not be held to the terms of the agreement. It is for this reason that Prenuptial Agreements are not binding. However, in circumstances where the agreement is freely entered into with the benefit of independent legal advice, combined with full and frank financial disclosure of finances in the absence of duress or undue influence, the Courts have stated that such agreements should be binding and therefore a Pre-nuptial Agreement, properly advised upon and executed with the benefit of legal advice, provides a great deal more security and certainty than ever before.
The Courts are required, should one party to a marriage make an Application to the Court for Financial Provision, to consider the factors set out in Section 25 of the Matrimonial Causes Act 1973. Under that statute, Prenuptial Agreements can be taken account of as “one of the circumstances of the case” or as “conduct which it would be inequitable to disregard”. It is in this respect that in recent years the Courts have been willing to place an increasing amount of weight on such agreements, provided certain safeguards are met. These are:
- That the agreement is entered into freely and without undue influence or oppression.
- That independent legal advice has been obtained by both parties.
- That there has been full and frank disclosure of all financial assets.
- That the agreement is signed at least 28 days before the date of marriage.
In those circumstances, the Court should give effect to a Pre-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 that agreement. This underlines the Court’s respect of individual autonomy.
It must be remembered that a Pre-nuptial Agreement is highly unlikely to be upheld as valid by the Court if it would prejudice the reasonable requirements of any child of the family. The same is true if circumstances had changed in a way that was not envisaged by the parties when they entered into the agreement.
We feel sure that from a brief reading of our legal summary of the situation as it relates to Pre-nuptial Agreements that there is flexibility in the law but, nevertheless, a Pre-nuptial Agreement will be binding in circumstances as we have described.
Any Prenuptial Agreement must consider the practical issues that are important to the parties including:
- What assets are brought into the marriage by each party.
- What property may be considered matrimonial property and may not be considered matrimonial property.
- What if one of the parties was to die during the course of the marriage.
- To what degree each party is to retain separate ownership of prenuptial/pre civil partnership property.
- To what degree each party is to retain ownership of post nuptial/post civil partnership property.
- In the event of separation, how assets, jointly purchased, are to be dealt with.
- What agreement, if any, is there to be made in respect of the contribution to the matrimonial home.
- What agreements are to be made concerning a review of the Pre-nuptial Agreement.
As we feel sure you can see from the issues that we have outlined, much of them are common sense and of practical significance. A properly drafted Pre-nuptial Agreement can provide certainty, reduce arguments and reduce costs.
Warren’s Family Law offer a fixed fee for the preparation of Pre-nuptial Agreements in accordance with the terms as outlined in the fixed fee for a standard Pre-nuptial Agreement on this website at a cost of £850.00 plus VAT. Should you wish to engage our services, or require any further information, please do not hesitate to contact one of our expert legal advisers by telephoning the office.