Pre-nuptial Agreements - are they worthwhile?

Lorna Tipple, Associate Solicitor at Harrison Clark LLP answers your questions regarding the current law relating to pre-nuptial agreements:

What is a pre-nuptial agreement?
A pre-nuptial agreement is a contract entered into by a couple who intend to marry and who wish to regulate the arrangements they have made in the event their marriage breaks down.

Are pre-nuptial agreements legally binding?
In English law, pre-nuptial agreements are not binding. However, they are increasingly influencing the outcome of financial settlements upon divorce and there is growing pressure for a change in the law to formally recognise such agreements.

How is a pre-nuptial agreement entered into?
In order for a pre-nuptial agreement to have the greatest possible effect, it is imperative that it is properly formulated. Both parties need to have separate, independent legal advice and should give full disclosure of their respective financial positions.

How close to the wedding can a pre-nuptial agreement be entered into?
Parties to an agreement need time to give disclosure, take independent legal advice and agree upon the terms of the contract. An agreement should be entered into well in advance of a wedding, but certainly more than 21 days before. Failure to enter into the agreement in a timely fashion will affect the contract's validity.

What happens if children are born?
A pre-nuptial agreement should properly cater for the possible arrival of children. Any children of a marriage are the Court's primary concern and as such a pre-nuptial agreement should ensure that the children's needs are fully met. Without this and if children are subsequently born, the pre-nuptial agreement is unlikely to stand.

What is the point of having a pre-nuptial agreement if it isn't strictly binding?
Recent case law shows a shift in judicial opinion regarding pre-nuptial agreements. Under the Matrimonial Causes Act 1973, the Court is able to take into account 'all the circumstances' of a case, and the existence of a pre-nuptial agreement will therefore be a special circumstance that the Court will have regard to.

The Court still retains discretion, but precedents increasingly show that where a pre-nuptial agreement has been entered into properly, there would need to be good reason why the terms of the pre-nuptial agreement should not be honoured.

For further advice or information regarding pre-nuptial agreements or any other aspect of family law, please contact Lorna Tipple or Jonathan Brew who will be pleased to assist.