Pre-nuptial agreements are not currently enforceable…

However, current family law states that in dealing with financial issues consideration has to be given to all the circumstances of the case. Therefore, courts can be asked to consider pre-nuptial agreements. In a recent case the court upheld just such an agreement upon the basis that:

• The parties understood the agreement
• They had been properly advised and there had been full financial disclosure
• The parties were under no pressure to sign the agreement. It must be signed at least 28 days before the wedding day. 
• There had been no unforeseen change of circumstances which would make it unfair to hold either party to the agreement
• There was no injustice to either party

When you enter into a pre-nuptial agreement the circumstances can be very different to those that exist if the marriage breaks down. The Court will have to take into account all of the circumstances of the case and how encompassing the agreement is. For instance, the presence of children could affect the reliance the court places upon the agreement.

At the moment pre-nuptial agreements are not widely used. People, from an emotional point of view, understandably when they are entering into a marriage, do not like to consider the consequences of that marriage breaking down. However, people are recognising, in particular where there are children from a previous marriage, that it is important to make their wishes about their assets clearly known and have them detailed in an agreement.

Many people prefer to have something in writing rather than nothing at all. An agreement would fully set out the position of you and your partner. In the event of a breakdown of your relationship, at best it would be adhered to in full or in part. At worse, discounted.

It is advisable to enter into an agreement well in advance of the "big day"! At least three months beforehand. Bear in mind that before it can be signed it has to be prepared and considered which will take approximately eight weeks and both parties to the agreement need their own independent solicitor.

The Law Reform Committee has recommended that pre-nuptial agreements should become law, subject to safeguards, and legislation should be amended to reflect this. So watch this space…

If we can help you with any of these issues, please call to speak with Rachael Smethurst, the head of our family team, on 01865 781181 or email.