Pre-Nuptial Agreements

In many parts of Europe, pre-nuptial agreements are held to be legally enforceable in divorce cases provided that both parties received sound legal advice and signed up to the pre nuptial agreement without being coerced or bullied into doing so.

In the UK, it has been very different. Pre-nuptial agreements have been set aside by the family court when deciding how to settle marital income, capital or pensions upon divorce. It is left to the discretion of the court to decide what is appropriate and whether the terms of a pre nuptial agreement should be upheld or not. However, since the important leading case of Radmacher –v- Granatino it is now clear that if certain formalities have been met at the time the pre-nuptial agreement is drafted and executed, a court is likely to find that the agreement is binding on the parties or “presumptively valid.” There will still be a discretion on the part of the court but this will be where the formalities of independent legal advice and disclosure have not been met or where the agreement creates some clear injustice (for example, where children have been born to the marriage and there needs to be some form of financial provision for them not dealt with in the pre nuptial agreement).

For this reason, many people in the UK  who are worried about what will happen to their income or assets if their marriage fails have decided that pre nuptial agreements are worthwhile and are instructing their lawyers to draft pre nuptial and even post nuptial agreements. It is true that pre nuptial agreements still cannot be absolutely guaranteed, but it is also true that the case law is much more robust now in determining that a pre nuptial agreement is valid unless there is a very serious reason why it should set aside as invalid.

To be even more certain, agreements should be reviewed regularly and particularly in the event that a significant change occurs such as the birth of a child to the marriage, then it is even more likely the family court will give weight to the terms of the pre nuptial agreement in determining what any final divorce settlement should be.

If you have any queries, then please do telephone Glynis on 0844 225 2790 or email your query to her.