A couple planning to enter a marriage or civil partnership may decide to enter into a written agreement reflecting what they intend to happen to their money and property if the marriage or civil partnership were to end.
Everyone has their own reasons for entering into a pre-nuptial agreement.
Pre-nuptial agreements are not strictly binding in the event of a later divorce however, the terms may be decisive in the event of a dispute before the Court unless the effect of the agreement would be unfair. It is not possible in England and Wales to have a fully binding agreement about what will happen on divorce, however, there are certain steps that should be taken to improve the prospect that the court will enforce the terms of it. Both parties need to:
- Set out their respective financial circumstances (known as financial disclosure)
- Take independent legal advice on the agreement and its effects.
- Finalise the agreement in good time before the wedding/civil partnership ceremony – ideally no later than 21 days before the wedding but always earlier where possible.
It can take time to deal with financial disclosure, enter into negotiations, draft the agreement and seek legal advice so it is vital to plan ahead.
The courts have indicated that in order for an agreement to be considered fair, the following will be taken into consideration in addition to the three points listed above:
- Whether the terms of the agreement are substantially fair i.e. the agreement provides for each party’s basic needs to be met in the event of a divorce
- That neither party felt pressured by the other to enter into the agreement
- Whether there was any fraud or misrepresentation by a party in relation to the agreement
- Whether contractual requirements were followed when the agreement was entered into, including a statement in the agreement that the parties intend to ‘create legal relations’
If in the event of a divorce, one party no longer wishes to be bound by the agreement but the other does, that person may make an application to the Court for the other to explain why an Order should not be made in the terms of the agreement. Whether the court upholds the agreement will depend upon the above factors.
Even though pre-nuptial agreements are not always binding, you should not enter into one unless you intend to be bound by the terms of the agreement.
If you need any advice regarding a matter like this, then please do not hesitate to contact our experienced team of family law solicitors in Devon on 01392 207020 or email family@tozers.co.uk
