Pre-Nuptial Agreements

Until recently it has been the case that agreements made before marriage by a husband and a wife that attempted to influence the way divorce courts allocate assets were of little value. However recent case law indicates that England is catching up with the rest of Europe and the courts are now taking them into consideration when deciding on the division of matrimonial assets.

 These are the items that should receive consideration when drawing up an agreement:-

         • division of property
         • maintenance
         • debts
         • personal rights
         • child arrangements
         • various practical matters
         • the reason why a prenuptial agreement is being drawn up

However, in order to offer protection to both parties, the courts have been careful to impose a variety of different safeguards.  Prenuptial Agreements must therefore be carefully managed throughout the drafting process to ensure that they stand up to scrutiny. When reviewing prenuptial agreements these are some the issues that a court would consider:-

         • Did both parties benefit from independent legal advice and was there a full financial disclosure?
         • Was either party under emotional or financial pressure to sign?
         • Would an injustice be done if the agreement were upheld?
         • How long before the wedding was the agreement signed?
         • What is the length of the marriage and have any children been born since?
         • Have there been any material changes in the circumstances of either party?

David Salter, chairman of the Resolution's (formerly Solicitors' Family Law Association) law reform committee, said making prenuptial agreements legally binding would give greater power and certainty to couples.

He said: "Our report comes out of a growing sense of unease amongst divorcing couples about the unpredictability of the courts' approach to the financial aspects of divorce. People want certainty and the ability to decide themselves what a fair outcome would be if the relationship ended. There is a need, at times, to protect the weaker person in a marriage but where a couple choose to make an agreement in the full knowledge of its effect, they should be entitled to have it upheld by the courts."

If you would like advice on drawing up a prenuptial agreement please contact Paul Antoniou on 0208 290 0440 or e-mail paul.antoniou@thackraywilliams.com