Most readers will have heard of ‘Pre-Nuptial Agreements’, and for many the phrase will immediately conjure up visions of fraught negotiations involving Hollywood stars - not surprising when it tends to be the divorce settlements of the rich and famous that reach the headlines.
But what are Pre-Nuptial Agreements and what (if any) place do they have in our legal system?
Put simply, a Pre-Nuptial Agreement (also known as an Ante-Nuptial Agreement) is an agreement entered into prior to a marriage (or a same-sex civil partnership) which aims to deal with the division of the parties’ assets etc on the happening of certain events; typically the end of the marriage/civil partnership.
Historically, Courts have been unwilling to be bound by any agreement which attempts to restrict the use of its own powers. Whenever a Court is invited to intervene in parties’ financial ‘negotiations’ it must review the circumstances of the case and a statutory checklist exists which directs the Court to look at each case individually but with specific reference to (amongst other things) the age of the parties, the duration of the marriage, the parties’ needs and resources, and their conduct etc. The aim of the Court is to arrive at a fair outcome for both parties. The aim of a Pre-Nuptial Agreement, however, is to effectively by-pass this procedure and to bind the parties instead to terms that were set down in writing at a much earlier stage, prior to the marriage/civil partnership itself. Naturally, the Court has had concerns about this as no-one can see into the future; terms that were once agreeable may no longer be so; and it just seems plain wrong (morally and otherwise) to enter into a marriage/civil partnership presupposing that it will fail.
In recent years, however, the relevance of Pre-Nuptial Agreements has been under review. It is generally accepted that UK family law should be brought in line with European family law in the hope this will avoid the confusion and inconvenience of parties simply moving around Europe, racing to issue proceedings in whichever jurisdiction is more favourable to them.
Further research into Pre-Nuptial Agreements has been commissioned with the results and a draft Bill promised in late 2012. Whether a change in the law follows remains to be seen. In the meantime, if you are considering a Pre-Nuptial Agreement (either as a party to a forthcoming marriage/civil partnership or as a concerned future parent-in-law!!) do remember that the Court is not obliged to be bound by its terms at the end of the day. Should you still wish to proceed, however, it is essential that both parties obtain independent legal advice upon the terms and format of the agreement.
Karen Andrews of Dutton Gregory Solicitors, 8 Carlton Crescent, Southampton can advise on this and other aspects of family law and can be contacted on 023 8022 1344.