Pre-nuptial agreements – a persuasive factor in divorce

Pre-nuptial agreements and post-nuptial agreements have no totally settled status in English law. The Law Commission are making recommendations for the legal recognition of both pre- and post-nuptial agreements in the near future. However, until parliament enact statutory enforcement, neither of these are legally binding in their own right in the same way as, say, a commercial contract of a lease might be. As such these are open to review by the divorce court in due course.

That said, both agreements can be legally very “persuasive” given certain criteria and depending on the circumstances prevailing at the time of a divorce or separation. The existence of a pre- or post-nuptial agreement is one of the many circumstances the divorce court will take into account on marital breakdown and, if properly drawn with the safeguards listed below, the agreement is likely to find judicial favour.

The recent Supreme Court decision in Radmacher v Granatino [2010] defined the current approach of the divorce court to nuptial agreements. For a nuptial agreement to carry full weight, it is essential that certain safeguards are met:

1. The parties must enter into it of their own free will without undue influence or pressure
2. Each party should be separately and independently advised by a solicitor
3. Each party should disclose to the other their respective financial circumstances generally. The financial disclosure should be appended to the agreement. It is important that the disclosure is full, frank and honest
4. In the case of pre-nuptial agreements, it is important that it is entered into some time before the marriage takes place. The recommendation is that the agreement is executed at least 21 days prior to the wedding
5. The agreement must be fair.  An agreement that is not fair is unlikely to be upheld by the court. To be fair, recognition will have to be given to changing the agreement as time goes by – i.e., a review – often recommended to take place every five years. What is a fair division after a short marriage will not necessarily be a fair division after many years of marriage
6. If there are, or are likely to be, children, then adequate provision will need to be made in relation to both to their housing, maintenance and care. This can also be covered as part of a review clause.

It is always best to be both generous and fair to your partner when making a pre- or post-nuptial agreement, and these are the kinds of agreements that will stand subsequent scrutiny in court.

The nuptial agreement is a best attempt to mitigate the impact of hostile financial claims on divorce against your wealth, within the confines of the current climate.  A nuptial agreement is essentially an insurance policy against divorce from your perspective, albeit as stated above, such agreements are not, as yet, legally binding.