A pre-nuptial agreement is a contract entered into between two people prior to their marriage confirming how their assets will be divided should they separate or divorce in the future.
Historically, pre-nuptial agreements were considered contrary to public policy in England and Walesand therefore void, despite the position being different in many European countries and America. However this changed following the 2010 case of Radmacher v Granatino when it was held that although such agreements were not contractually binding, a Court should give effect to such an agreement if it was freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
English law can therefore be said to now lean in favour of upholding pre-nuptial agreements wherever it is feasible and just to do so.
Pre-nuptial agreements were most recently considered by the Court in the case of BN v MA where the Wife sought to challenge the terms of such an agreement, specifically in relation to the interim financial provision she was to receive pending the divorce being finalised. The Wife’s case was that despite both her and her Husband having received independent legal advice on the pre-nuptial agreement, the Husband had not disclosed all of his assets and there were issues surrounding the signing of the agreement which would lead a Court to conclude that it would be unfair to apply it.
The Judge though having considered in detail the provisions of the agreement and the mechanics of its negotiation and agreement, concluded that both parties should be held to the terms of the pre-nuptial agreement, saying “ ..It must be obvious that the principal object of the exercise in this case (as indeed in every case where a pre-nuptial agreement is signed) is to avoid subsequent expensive and stressful litigation; and it is for this reason, as will be seen, that the law adopts a strict policy of requiring the demonstration of something unfair before it will open the Pandora’s box of litigation where there has been an agreement of this nature”.
This most recent case therefore continues to demonstrate that pre-nuptial agreements can be a valuable method of protecting assets in the event of a separation/divorce, subject to it being fair to hold the parties to the agreement and which will depend on the particular circumstances of each case.
A Law Commission report is shortly due on Matrimonial Property, Needs and Agreements and which will hopefully provide yet further clarity on the status and enforceability of pre-nuptial agreements.
Should you wish to enter into a Pre-nuptial agreement then please contact our Family team.