Pre-nuptial agreements have been popular and binding in the United States and Europe for several years now. They have been gaining popularity in the UK, however the courts here do not always recognise, or uphold, the premarital agreement that the divorcing couple entered into.
Andrew Stout, family lawyer and partner at Tallents Solicitors in Newark, looks at a report from the Law Commission, which recommends that ‘qualifying nuptial agreements’ should be enforceable.
Qualifying pre-nuptial agreements should be enforceable
If adopted by the government, this recommendation could mean that it would be easier for couples to manage their financial affairs on divorce or at the end of a civil partnership.
A qualifying nuptial agreement would enable married couples and civil partners to make a legally binding agreement about how their property or finances should be distributed and shared should the relationship break down.
If the proposals are adopted, then the qualifying nuptial agreements would apply only after both partners’ financial needs, and any financial responsibilities towards the children of either party, have been met.
The qualifying nuptial agreements would also only be binding if, at the time of signing, both parties had fully disclosed all material information about their current financial situations and both had received legal advice.
What is a pre-nuptial agreement?
Pre-nuptial agreements have become more popular amongst couples who are entering into a marriage or civil partnership, either with significantly unbalanced financial means, or where they are bringing into the relationship, significant assets from a previous marriage or civil partnership.
At present the English courts may choose not to uphold the pre-nuptial agreement entered into by divorcing couples or separating partners, meaning couples may lose the assurances and certainty they were seeking to achieve by signing the pre-nuptial agreement in the first place.
The family law organisation Resolution, welcomed the proposals with the Resolution chair, Jo Edwards commenting:
We don’t expect this measure to lead to every engaged couple in the country seeking a pre-nup, but for those couples who want to have one in place, it will make their legal situation much clearer and reduce uncertainly upon separation.
Pre-nuptial agreements have value in the UK
The recommendations made by the Law Commission must first be considered and approved by Parliament in order to become law and therefore enforceable.
However, this doesn’t mean that pre-nuptial agreements have no value as they can allow engaged couples to consider both their current and future financial responsibilities before entering into a new marriage or civil partnership.
In addition couples can enter into a post-nuptial agreement after a marriage/civil partnership, which sets out how assets will be divided should they separate and such agreements will be binding. Couples who have signed a pre-nuptial agreement should always then make that agreement into a post-nuptial agreement after their marriage/civil partnership has taken place.
As always, Tallents Solicitors is on hand to help clients with all their legal requirements. Just call 01636 671881 to make an appointment to discuss your individual needs.