Pre-nuptial agreements are often mentioned in the media and elsewhere, particularly in relation to celebrity marriages. But they are not just for celebrities. More and more people are deciding that a ‘pre-nuptial’, as it is known, is for them.
So what exactly is a pre-nuptial, how do you go about getting one, and what is its status under the law of England and Wales?
Preparing for the worst
Pre-nuptials are, as the name suggests, agreements entered into by couples before they get married. They set out what should happen, particularly in relation to financial arrangements, if the marriage should fail and divorce proceedings take place.
The point is that the law sets out how a couple’s finances should be arranged on divorce, and sometimes the couple would prefer those arrangements to be different to what the law says.
There are various specific reasons why the couple may not want their financial arrangements to be sorted out by the divorce court.
In particular, they may be concerned that the divorce court has the power to deal with all of the property and assets of both parties, and they may want certain assets to be ‘ring-fenced’, such as assets owned prior to the marriage, inheritances and business assets.
The pre-nuptial could say that those assets will remain in the ownership of the spouse that acquired them.
How to get a pre-nuptial
It may be thought that simply writing down what you have agreed with your spouse-to-be is all that is required to get a pre-nuptial. However, an agreement simply written out by one of the parties and signed by both is unlikely to be given serious consideration by the divorce court.
The court is only likely to give serious consideration to a pre-nuptial if certain formalities are complied with.
The first is that the pre-nuptial needs to be properly drafted. This can be a complex and technical task, and is really therefore a job for an expert family lawyer.
The second formality is that, before the pre-nuptial is signed, both parties should disclose to the other full details of their financial circumstances, so that both parties have all of the information that they require to enable them to make an informed decision as to whether or not to enter into the pre-nuptial.
By the same token, both parties should take independent legal advice before signing the prenuptial, so that they are fully aware of the legal implications of what they are doing.
Finally, the pre-nuptial should not be entered into immediately prior to the wedding, as that could give rise to suggestions that one party may have been coerced into signing it. There is no definite time period, but it has been suggested that the pre-nuptial should not be signed less than 28 days before the wedding.
How the law treats pre-nuptials
There is a general rule that you can’t prevent a court in this country from making the order that it wants to make. Any agreement to override the power of the court is therefore not binding upon the court.
The effect of this rule is that, unlike in many other countries, pre-nuptial agreements are not binding upon the courts of England and Wales.
In the light of this, until quite recently the courts here paid little or no attention to pre-nuptial agreements.
However, that changed as a result of a decision of the Supreme Court in 2010. The Supreme Court held that the courts here should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless it would not be fair in the circumstances to hold the parties to their agreement.
The result of this decision is that, whilst the courts here are still not bound to follow the terms of a pre-nuptial agreement in all cases, they are likely to do so in most cases. Pre-nuptial agreements are therefore a perfectly valid way to try to predetermine what will happen to your finances if your marriage should fail.