Pre-Nuptial Agreements to become enforceable in England?

Pre-Nuptial Agreements to become enforceable in England?

The Daily Mail reports today that legislation will be brought forward to enforce pre marriage agreements: http://www.dailymail.co.uk/news/article-2550751/Prenuptial-agreements-legal-Couples-able-ring-fence-items.html. This has been recommended by the Law Commission.

What does this mean for couples considering getting married in the near future?

Pre-nuptial or Pre-marriage Agreements (“Prenups”) represent a difficult issue for a couple to grapple with, and are often viewed with suspicion and seen as unromantic. As the title suggests, they are only raised when you and your partner have decided to get married, and are an additional pressure at a time which is fraught enough as it is.

In England, we are at odds with many other First World Countries, which have long had laws which recognize and enforce pre-nuptial agreements. In fact, we should be legislating as soon as possible, as under recent European legislation, prenups enacted in other countries could be enforced in England through the bank door. The EU Maintenance Regulation of 2011 allows for agreements made in other countries to be enforced in England.

There may be good reasons to enter into an Agreement, such as the need to provide for your partner’s children from a previous marriage, or to safeguard a family inheritance from division if your relationship was to founder. But they serve to protect both proposed spouses, as they must be fair. It would not be right for one partner to be debarred from claiming against the other, and this is something that courts in England feel is very important. This is particularly the case where circumstances have changed since the date of signing the Prenup, such as the birth of a child or one spouse becoming ill and unable to support themselves.  Judges have a free rein to decide whether or not to accept them, as there is no law saying that they should be recognised automatically, unlike many other countries worldwide.

Although the Agreements are increasingly being dealt with by the English courts, they remain largely misunderstood. There is no guarantee that such a document will be taken into account by a judge, and proper and comprehensive advice at the outset is essential.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk

However there have been a number of cases which have moved the law on to make pre-nups more relevant and as a result, significant weight has been attached to them.  One of these cases was Crossley where the wife had £18.0m of her own assets and the husband had a bit more.  Both were capable of living independently and the pre-nup was upheld against the wife.

Another case was Granatino, where the wife was successful and the court laid out a statement of principle that the parties should be held to an agreement which has been freely entered into with full appreciation of the consequences as long as it’s fair to do so.  Therefore although agreements are not binding or enforceable, the court’s main role is to achieve fairness between the parties and therefore the court will look at all the circumstances incurred, including any pre-nup.

There are certain necessary elements in English prenuptials which need to be included, to maximise the chances of their being recognised and enforced by the courts later if necessary:

• It must be in writing;
• The document must be delivered to the other partner at least 28 days before the wedding date;
• Both parties must have access to independent legal advice, which means that no one lawyer can talk to both partners; and
• The party seeking to enforce the Agreement must have given full and frank disclosure of their financial circumstances.

The overarching consideration for the English court is fairness. If the Agreement is not fair, it will not be upheld. The length of the marriage is relevant, as well as the extent to which the less well-off spouse was reliant on the financially stronger spouse, and this whether there was an expectation that the former is entitled to continue to do so. The ages of the parties at the time of divorce, and their respective future earning potential is looked at, as well as if there are dependent children.

There are many aspects to think about when considering a Prenup, whether you would like your fiancé(e) to sign one, or if you are the recipient of one. There may also be foreign provisions which may need to be included and at Blanchards Law we have links with good family lawyers in other jurisdictions who can advise appropriately on those. It may well be that you ought not to conclude your settlement in the United Kingdom at all, and we are able to draw upon our knowledge and experience to assist you in this decision.

At Blanchards Law, we recognise the need to deal sensitively and fairly with our clients. As a family law firm, we offer a holistic service whereby we can mediate and collaborate with our clients and other solicitors to reach a mutually acceptable agreement. We have drafted many prenups and it is extremely important to us that your relationship is unharmed.

© Punam Denley, February 2014

Blanchards Law is a niche family law practice with divorce solicitors, mediators and collaborative lawyers.

Can we help you? Please call us on 0845 658 6639 or email us at pd@blanchardslaw.co.uk