Although pre-marital contracts are not yet binding in English law, if you are considering marriage and wish to protect assets, it is critical that you consult solicitors at least two months before the date set for your marriage. Courts are increasingly more willing to conclude that financial agreements, whether post-nuptial or pre-nuptial, should be upheld.
As family law specialists, our solicitors have the requisite technical skills and expertise to ensure negotiations are conducted so as to obtain the best possible outcome for our clients. We seek to ensure that any agreement we draft will, where possible, provide for its terms to be upheld by the courts, if this should become necessary at a later stage.
Pre-Nuptial Agreements
To ensure as far as possible that a pre-nuptial agreement is upheld by the Courts, it is important that in the process of negotiating the terms of the agreement, full financial disclosure takes place by both parties. Both parties should obtain independent legal advice and the agreement should endeavour to provide for any possible future change in circumstances, such as how the financial agreement would be affected in the event of children.
Although there is no 100% guarantee that pre-nuptial agreements will be upheld by the courts, they are an important factor to be taken into account and could save substantial legal wrangling and costs in the event of a marriage breakdown.
The case of Radmacher v Granatino in 2009 has strengthened the case for pre-nuptial agreements being upheld. In this case the Court of Appeal concluded that the trial judge had been wrong not to give “decisive weight” to the parties’ pre-nuptial agreement.
Post-Nuptial Agreements
In 2008, the case of Macleod v Macleod determined that post-nuptial agreements should be enforceable subject to the Courts’ power to vary such agreements. This was a change in approach by the Courts who had previously been more reluctant to uphold such agreements.
In deciding whether to uphold a post-nuptial agreement, the Courts will consider a number of factors:
- Whether there has been a change in the parties’ circumstances since the agreement was entered into;
- Whether the agreement makes proper provision for the birth of children;
- The circumstances surrounding the agreement.
We realise that to raise the issue of a pre-nuptial or post-nuptial agreement with your partner needs to be handled delicately. For confidential, expert advice, please contact our specialist family law solicitors on 01992 892214.
