Wedding planning? Add pre-nuptial agreements to the list
Sue Baker explains the nature of pre-nuptial agreements in the UK.
Pre-nuptial agreements have become increasingly more popular in today’s society and since the 2010 Supreme Court decision, pre-nuptial agreements are now being recognised in the English courts. It is however, important to note that certain conditions must be satisfied to ensure that the agreement is valid on divorce.
The court’s main focus will be on the fairness of the agreement. The case of Radmacher v Grantino sets out the test for fairness by applying the following three principles.
The agreement must be entered into freely
You will need to demonstrate that you entered into the agreement freely without any undue influence or duress. It is therefore recommended that the agreement is prepared, agreed and signed at least 21 days before the wedding to avoid any allegations that either party was forced into the agreement.
Parties should appreciate the nature of the agreement
Each party should be in possession of all the information material to his decision to sign the agreement. This will be done by providing full and frank disclosure of all your capital assets and income and understanding that the agreement is to determine how these will be divided in the future. The court suggests that obtaining independent legal advice is strong evidence of the party’s understanding of the agreement.
It must be fair to hold the parties to their agreement in the circumstances prevailing
The courts will look at what the parties have agreed to ensure that one party is not left in a state of real need. If the judge does not believe that the agreement is fair, you would have to go through the whole financial remedy process upon divorce which would render the pre-nuptial agreement null.
Once these principles have been applied, it is advised that a review period should be included as events change over time. We usually suggest that a review should be carried out within a five-year period or on the birth of a child.
It is therefore advised that you seek independent legal advice in order to ensure that the agreement is fair and can be held as binding in the future.
If you are getting married this year and want to enter into a pre-nuptial agreement then please contact our Family Team to start the process or for more information.
It is possible to draft an agreement after you are married. If it does get too close to the wedding, we advise that the agreement is agreed after. Post-nuptial agreements are also treated in the same way as pre-nuptial agreements.