Historically, family lawyers may have answered these two questions with 'no' and then 'what's the point'?
In the past few years however, case law has developed such that pre-nuptial agreements have become more enforceable, subject to certain criteria being met and dependent on the facts in each individual case. At Emsleys, we are receiving more and more enquiries from married couples and civil partners wishing to regulate their finances prior to their marriage/civil partnership.
In the past few weeks, the Law Commission has published its report on pre-nuptial agreements - Matrimonial Property Needs and Agreements which essentially recommends that pre-nuptial agreements should become legally binding, albeit with a new name Qualifying Nuptial Agreements. Under the recommendations, a Qualifying Nuptial Agreement would be binding as long as both parties obtained legal advice; had exchanged full financial disclosure with each other; the document had been signed no later than 4 weeks before the marriage; and as long as it did not contract out of their own or their children's financial needs and responsibilities.
The report states: We have built in safeguards to ensure that they cannot be used to impose hardship on either party, nor to escape responsibility for children or to burden the state.
It may well be a while until the recommendations are made into law and so at the moment the courts will continue to deal with the question of pre-nuptial agreements on a case-by-case basis.
The judiciary continue to have a wide discretion in these cases. In very general terms, a pre-nuptial agreement will be upheld providing there has been legal advice and both parties knew the implications of entering into the agreement; financial disclosure; sufficient time to consider the agreement; and providing it satisfies both parties' needs sufficiently.
For a free, initial consultation with a member of our Family Law team, call 0113 201 4900 or email firstname.lastname@example.org.
Pre-nups are becoming more and more common and are not only for the rich and famous. Judges will use very strict criteria in deciding whether they should be binding on the breakdown of a marriage or civil partnership. It is extremely important, therefore, that you seek legal advice before you enter into a pre-nup, not least to ensure that it meets all of your family's future needs.
For a free, initial consultation with a member of our Family Law team, call 0113 201 4900 or email email@example.com.Back to Blog