Pre-nups are coming!
Contact Natalie Jones for more information
A pre-nuptial agreement (pre-nup) is a contract between the parties to an intended marriage or civil partnership that seeks to regulate their financial affairs in the event the relationship were to end. At present, pre-nups are not strictly binding on the court in the event of divorce however they have been regarded as persuasive and may influence the outcome of an application for financial remedy, unless that outcome would be unfair.
However, this could all change as a result of the Law Commission’s recent proposal to make pre-nups legally binding. If the new law is enacted, married couples and civil partners would be able to make a binding agreement about how their property and/or finances should be shared if their relationship breaks down. It is argued that this will make the outcome of a separation more predictable for the parties and avoid bitter and costly court proceedings.
At present, the court has absolute discretion in respect of financial orders on divorce and each case is determined on its own merits.
Generally speaking, a court will give significant consideration to the terms of a pre-nup if it is satisfied of the following:-
• Both parties entered into the agreement voluntarily.
• The agreement provides for the needs of both parties and any children. The court’s first consideration is always the children of the family.
• Both parties were fully informed of both the legal and financial implications of the agreement. The parties are expected to seek independent legal advice as to whether the proposed terms of the agreement are reasonable in the circumstances having regard to the financial disclosure.
• The agreement was finalised in good time before the wedding or civil partnership ceremony so that neither party feels undue pressure to agree to anything.
Under the new proposals, provided the pre-nup meets the above qualifying criteria, it will be binding and the court will have no discretion to make an order differing from its terms. It is not suggested that the absence of any of the criteria will render the agreement void but it would mean it is no longer a binging agreement allowing the court to exercise its discretion.
Click here for more information about the Law Commission’s proposal to make pre-nups legally binding.
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