Pre Nuptial Agreements
After the recent case of Granatino v Radmacher there has been much hype regarding the validity and enforceability of pre nuptial agreements in the UK.
When a marriage ends the parties’ major source of stress is the uncertainty as to the outcome of financial matters upon their separation/Divorce. This is more so for people who are entering into second or third marriages or who are marrying later in life. These people are entering into their marriage with assets they have acquired/built up which they wish to protect in the event of their marriage breakdown.
One possible solution is for the parties to enter into a pre nuptial agreement. However at the current time of writing pre nuptial agreements lack legal recognition in the United Kingdom but as a result of the recent Radmacher Divorce case, pre nuptial agreements are likely to carry greater weight if entered into between the parties with certain safety features.
What is a Pre Nuptial Agreement or a “Pre Nup”?
This is a written formal agreement entered into by a couple before they enter into their marriage which sets out terms of agreement in relation to their finances and children’s arrangements in the event that the parties should in future Divorce.
What are the safety features necessary to ensure that the Court will place greater weight on the Pre Nuptial Agreement?
The Court will be persuaded to implement the terms of the Pre nuptial agreement provided that it has been properly drawn up and upon the basis that it would not lead to an unfair outcome.
The parties must have disclosed to each other their respective financial positions on a full and frank basis and both must have had the benefit of independent legal advice prior to signing up to the Pre nuptial agreement.
There should have been no undue pressure placed on either party to enter into the agreement; the terms should be clear; the agreement should not seek to take away the powers of the court; and it should not be entered into less than 21 days before the date of the marriage.
The UK Courts continue to hold discretion in all family matters and therefore the Pre nuptial agreement will not bind the Court but it is likely that if executed with the safety features in place the Court may be persuaded to hold up the agreement as binding or at least have a significant bearing on the financial outcome of the particular case.
People often wonder whether it is worth getting the Pre nuptial agreement because it will not be enforceable in the United Kingdom. However, the UK Courts are increasingly adopting provisions of a Pre nuptial agreement if drawn up with the safety features in place and so long as the outcome does not lead to an unjust result.
The Court will consider the Pre nuptial agreement as one of its section 25 criteria under the Matrimonial Causes Act 1973.
For additional information please read our page on financial arrangements on divorce.
If you have any queries with regard to the drawing up of a Pre nuptial agreement or any other related matters then please contact us
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