Pre-Nuptials
PRE-NUPTIAL AND PRE-CIVIL PARTNERSHIP AGREEMENTS
Background
Pre-nuptial agreements were initially used prior to the Married Women’s Property Act 1882 , to protect the property of women of wealthy families who were thought to be marrying ‘bounders’ or ‘cads’, (who would no doubt run off with the money) by transferring their properties to trustees to hold on their behalf. That was obviously considered necessary at the time.
However, now in the 21st century, pre-nuptial agreements have received much press coverage, and are possibly again a sensible option in our more egalitarian and individualistic society. However the question remains, ‘How far are they binding in our courts?’
Since October 2000, we have had incorporated into our laws the Human Rights Act, linking us to European legal precedents in a way that means the European practice of honouring pre-marital agreements will be considered, but not necessarily acted upon by any court looking at such an arrangement.
What we can do
At present, any such contract entered into by a couple is a factor the court can consider when making a financial order on the ending of a marriage/civil partnership. It cannot, however, in English courts, override the court’s discretion to make different financial arrangements on divorce/dissolution. But then, there are various steps the parties can take to ensure their premarital agreement is given as much weight as possible, and our Family and Relationships Team can help you.
The Issues
If you would like to consider drawing up a pre-nuptial agreement, we can advise and assist you, in looking at the following areas.
- The couple planning to marry/register a civil partnership should:
- seek their own independent legal advice before entering into the agreement.
- 'fully disclose to the other a true picture of their financial means and circumstances, with a summary of such means being attached to the agreement.
- bear in mind that, on divorce or dissolution, a court looking to review an arrangement will want to see if it leads to a fair division, on a basis of equality and if not, why not?
- The agreement should:
- make clear how any assets they are each taking into the marriage/civil partnership are to be held in future and how they will hold any new assets acquired.
- address how the equity in the home will be divided and who will occupy it when the relationship breaks down.
- address how their assets are to be divided in the event of the death of either of them.
- be entered into not less than 21 days before the marriage/civil partnership ceremony.
Current Status
The Law Commission has announced a Marital Property Agreements project to examine the status and enforceability of pre-nuptial agreements. Such agreements are not currently enforceable in the event of divorce or dissolution of the civil partnership, but the court may have regard to them in determining the appropriate financial settlement.
Some view the current law as a deterrent to marriage or civil partnership. This issue is of particular importance to those entering into second marriages who wish to protect their assets and crucial for couples who have already entered into such agreements in other countries where such agreements are enforceable. The Law Commission will not be considering agreements for unmarried couples.
Despite numerous calls from senior Judges in recent years, it has also decided not to conduct a project to review the existing law regarding the division of property and finances in the event of relationship breakdown following marriage or civil partnership.
Visit the website: http://www.lawcom.gov.uk/docs/lc311.pdf to read the Law Commission’s Program of Reform.
Please contact us at familyandrelationships@glazerdelmar.com if you would like more information about making a Pre-nuptial or Pre-civil partnership agreement.
Click here to read an article on Pre-Nuptials Written for Living South Magazine.