Pre-Nuptial Agreements

Pre-nuptial agreements are agreements entered into by a couple prior to a marriage (or in the case of civil partnership, a pre-civil partnership agreement) seeking to regulate their financial liabilities and responsibilities towards each other in the event of a divorce/dissolution.

Under English law pre-nuptial agreements are not formally binding between the parties and are not enforceable. They cannot oust the jurisdiction of the Court or the Child Support Agency (CSA). They have, however, carried significant evidential weight in subsequent divorce proceedings or proceedings for dissolution. They have been taken into account by the court in exercising its discretion under the Matrimonial Causes Act 1973 (MCA 1973), s 25 (and would similarly be a factor for the court in the corresponding provisions set out in the Civil Partnership Act 2004 (CPA 2004)) either as part of the conduct of the parties or as a consideration in all the circumstances of the case. The Supreme Court has recently reviewed the enforceability of pre-nuptial agreements and indicated that in future, in appropriate cases, due weight should be given to any contract freely entered into by the parties, in the exercise of the judge's discretion subject to the agreement being 'fair'.

Questions for the court to address, include whether:-

·      the parties were properly advised as to its terms;

·      contractual formalities were observed;

·      there was full disclosure.

Consideration will be given to whether the original agreement made was fair and if an Order were made in its terms, whether it would result in a fair outcome.

Many of the reported cases on pre-nuptial agreements have been concerned with consideration of agreements entered into by parties in a foreign jurisdiction and which court should have jurisdiction.

Post Nuptial Agreements

These are agreements entered into after marriage or civil partnership. Similar considerations will apply to the making of post-nuptial agreements as apply to pre-nuptial agreements.

Pre and Post Nuptial Agreements are a complex and changing area of the law and therefore if you are intending to enter into either agreement you should contact us to take advice on whether your proposals are fair and reasonable (in light of the circumstances at the time) to place you in the best possible position to later be able to rely on the contents of the agreement.