Pre-Nuptial Agreements and Marriage

Pre-nuptial agreements have become increasingly common over recent years, but, at present, are still not formally recognised as a part of English Law. However, the Law Commission recently looked into this further and have recommended that such agreements should now become a part of matrimonial law, subject to certain conditions. Even though these agreements are not yet formally recognised by English Law, the existence of a pre-nuptial agreement is something which the Court will give serious regard to.

Pre-nuptial agreements may not seem like the most romantic of subjects to broach before a marriage, but honest communication before tying the knot can be an extremely positive thing. If you are considering a pre-nuptial agreement or would like to know more, speak to a member of our Family Law team who can help you.

Pre-Nuptial Agreements And The Law

Both parties must be aware that no agreement between them can override the legislation which is in place to govern how a Court deals with financial and property matters within matrimonial proceedings. It cannot oust the Judge’s discretion to decide upon the appropriate division of assets on a divorce. This means that a pre or post-nuptial agreement cannot stop a spouse applying to the Court for financial provision from the other when divorce proceedings have been issued, but the case law is such that the Court should give effect to a pre or post-nuptial agreement that is freely entered into by each party, as long as each party has a full appreciation of its implications.

It is increasingly common that the Court would seek to uphold such an agreement unless it feels that would be unfair to hold the parties to their agreement for some reason, usually because of some unforeseen event which has changed the circumstances of the parties. In other words, if a couple enter into a pre or post-nuptial agreement, they should do so with the intention and the assumption that it will be binding.

How do Pre-Nuptial Agreements work?

There are various safeguards which need to be in place in order to ensure that the agreement is given serious consideration by the Court in any subsequent divorce proceedings. It is, therefore, important that legal advice is taken well in advance of a wedding to ensure there is plenty of time for the couple to discuss how they want to approach it and for the agreement to be drawn up.

Although it can be a difficult discussion to have with your intended, pre-nuptial agreements can save parties both money and potential stress and upset if the marriage breaks down. They can also provide some assurance to family members where money or property is being gifted, lent, or inherited, in that it can show what is intended to happen to such money if the parties go their separate ways. Pre-nuptial agreements can also be particularly important where the couple have children from previous relationships, and want to preserve assets for those respective children should the relationship fail.

As unromantic as it seems, discussing a pre-nuptial agreement is definitely something which should be considered where one or other party is coming into the marriage with assets which he or she wishes to preserve. Of course, everyone would hope that the agreement may never have to be relied upon, but for most couples the peace of mind that it brings makes the existence of such an agreement well worth it.

For more information about pre-nuptial agreements, contact the team at Fraser Dawbarns to see how we can help you.

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