Guide to Pre-Nuptial Agreements
What are they?
A pre-marital or pre-nuptial agreement is an agreement reached between two people who intend to marry and wish to regulate, organise and plan their legal position in the event of marriage breakdown. It is used to set out the property and financial rights of spouses in the event that a marriage ends in divorce. Presently pre marital agreements are not necessarily binding in this country in subsequent divorce proceedings. However, provided the agreement is entered into in good time before the marriage, both parties have fully and frankly exchanged personal and financial information, and each have the opportunity of obtaining legal advice, then these agreements are being recognised by Courts.
On October 20th, 2010, judges found in favour of pre-nuptial contracts when the Supreme Court ruled that a German heiress’s pre-nuptial agreement with her ex-husband was binding under English law. This recognised pre-nuptial agreements as enforceable under British divorce law for the first time.
The Court dismissed an appeal by Nicolas Granatino, the former husband of heiress Katrin Radmacher, who was seeking a larger share of her multi-million-pound fortune. The pre-nuptial agreement was fair, ruled the Court.
The Supreme Court’s ruling potentially brings England into line with most of Europe and the US where pre-nups are legally binding. To date English law has not formally recognised pre-nuptial agreements in the way that some other countries do. This has been changing and in recent years, English Courts have given pre-nuptial agreements weight in a number of cases and treated them as being of significance. The reason the Radmacher case breaks new ground is because the pre-nuptial agreement was upheld in its entirety. The signs are that this is going to be increasingly the position. However, for it to be the position in all cases Parliament would need to bring in new legislation. There are signs that this will happen in the near future.
Why consider one?
It no doubt seems odd to be presented with agreements dealing with the possibility of divorce in the weeks prior to a wedding. The answer lies not in any suspicion that any particular couple’s marriage will end in divorce. Unfortunately divorce is relatively common and not so rare that the risk can be discounted entirely. The rate of divorce is also increasing.
Like a disability insurance policy, one hopes never to have recourse to agreements concerning divorce. But if, God forbid, one does become disabled, having a disability insurance policy can be of great value. So too, these agreements concerning the details of a divorce, can be of great help in making an unpleasant experience less unpleasant.
It is also true that people are tending to marry later in life when they have more assets that they have accumulated through their own efforts. It is natural that they may wish to keep these assets outside the ‘matrimonial pot’ of shared property and wealth that could be divided on a 50:50 basis if the relationship breaks down.
Second marriages are also increasingly common. Those marrying for a second time are likely to want to protect the settlement from the first marriage or if they have had to pay a substantial amount to their ex-partner previously, would not want to do so again. In addition, people with children from a previous relationship, may want a pre-nuptial agreement to ensure that their children inherit their property and not their new spouse or spouse’s family.
If one partner has assets that have been in the family for generations, a pre-nuptial agreement provides a way to ring-fence inherited property in the event of a divorce.
It is imperative that certain minimum safeguards are met to give a pre-nuptial agreement the best possible chance of success. Those guidelines include:
- Provision must be made for children;
- Both parties should have taken independent legal advice;
- Both parties should seek independent accountancy advice
- Neither party should feel pressurized into entering into the agreement;
- The agreement must be fair;
- Full financial disclosure must have been made;
- The agreement must have been drawn up at least 21 days prior to the marriage
- The agreement should include clauses allowing it to be reviewed on certain events like the birth of a child.
What would be in a pre-nuptial agreement?
It will normally provide financial planning in the event of a divorce or separation and could therefore include:
- The rights and obligations of each partner concerning any property;
- What will happen to life insurance, pensions and other policies;
- Any matter which regards personal rights and obligations
- A Pre-nuptial Agreement can also highlight issues that many couples overlook as potential causes of friction in the event of a separation, such as:
- Practical matters like joint accounts;
- The provisions of a family business;
- The provisions for spousal support;
- Division of personal possessions;
- The disposal of property