What is a Pre-nuptial Agreement?
A Pre-nuptial Agreement or Pre-marital Agreement is effectively a written contract between two people who intend to marry, which sets out and regulates how the parties’ finances and assets should be distributed upon divorce.
These types of agreements are becoming more and more popular in England & Wales as they are heavily taken into account by the courts when dealing with financial order proceedings following the landmark ruling in Radmacher v Granatino.
Are they enforceable in England & Wales?
Prior to the case of Radmacher v Granatino prenuptial agreements were not taken into account upon divorce and they were generally viewed as being contrary to public policy.
Strictly speaking, and at this present time, a pre-nuptial agreement does not oust the jurisdiction of the court, in other words it is still arguable for one of the parties to contest that they are bound by the terms of the agreement and that other factors arising out of the marriage are more important than the agreement itself.
When considering financial order proceedings the courts must have regard to a list of factors contained within s25 Matrimonial Causes Act 1973. The courts will consider the agreements as either “conduct which it would be inequitable to disregard” or “one of the circumstances of the case”.
What are the current necessary formalities before entering into a Pre-nuptial Agreement?
A Pre-nuptial Agreement cannot be entered into 5 minutes before the actual wedding. There are a number of formalities that have to be observed in order for the court to properly recognise the agreement which are as follows:
- The parties have both had completely separate and independent legal advice;
- The parties have both made a very full and frank disclosure of their respective financial positions to each other;
- There has been no pressure or undue influence brought to bear by one party in order to compel the other party to enter into the agreement;
- If you are considering an agreement it is always prudent for you to seek advice as soon as you possibly can and certainly well before your intended marriage or civil partnership ceremony (at least 21 days however it is good practice to allow a minimum of 8 weeks from execution of the Agreement to the wedding or civil ceremony).
What about the new proposals we’ve heard about on the news, does this mean that Pre-nups are now fully enforceable in England & Wales?
The short answer is, not quite, but it certainly seems very likely and soon, and it`s definitely better to have one than not!
Basically there has been a Matrimonial Property, Needs & Agreements Bill proposed by the Law Commission and the Law Commission proposes (amongst other things) to call Pre-nuptial agreements “Qualifying Nuptial Agreements” and finally make them fully enforceable.
There would still be pre-requisite safeguarding steps which would have to be met before the agreement was signed, which one can only imagine would be very similar to the formalities listed above. The proposed Bill would finally bring Pre-nuptial Agreements in line with other European countries, and the USA, and is certainly a sensible step forward which would enable fully informed, consenting adults to enter into such an agreement if they so desire.
So how much does a Pre-nuptial Agreement cost?
All Solicitors will require a schedule of your assets which will either be annexed to or contained within the body of the agreement therefore make sure that you provide your Solicitor with a full and comprehensive list of your finances and assets.
Remember that both parties need to seek separate independent legal advice and therefore there will be two separate amounts of legal fees to pay for so it`s best to shop around for a good price!
Here at Laker Legal Solicitors we are a nationwide specialist Family Law Solicitors firm with over 30 years experience in legal practice. We draft many Pre-nuptial Agreements and are instructed by clients from all over the country, frequently in central London.
We offer Pre-nuptial Agreement fixed fees from £795 + VAT so please contact us for more details.
