It is estimated that around 50% of marriages now end in divorce. The percentage is higher for second marriages. Many couples now consider entering into Pre-Nuptial Agreements. These are particularly popular when parties have been married before and want to ensure that pre-acquired assets are preserved for the benefit of their children and grandchildren.
The law relating to pre-nuptial agreements has developed following the Supreme Court decision in Radmacher v Granatino in October 2010. The key points of the current law are as follows:
- When considering the role of a pre-nuptial agreement in a financial claim on divorce, the starting point is the relevant legislation, which is the Matrimonial Causes Act 1973. Section 25 of that Act obliges a judge to consider all the relevant circumstances of the case when deciding how to divide the parties’ finances on a divorce.
- No agreement between the parties can override the legislation or prevent the judge from deciding on the appropriate division of assets on a divorce. This means a pre-nuptial agreement cannot stop a spouse applying to the court for financial provision from the other spouse. Any “waiver” of the right to apply to the court for financial provision in an agreement will not be effective.
- The significance of a pre-nuptial agreement is as a relevant circumstance of the case, to be weighed by the judge. A pre-nuptial agreement will have a substantial impact on the judge’s decision in many cases.
It is fair to say that, as the law currently stands, pre-nuptial agreements are almost as good as binding, provided they are fundamentally fair.
Please contact us if you wish to discuss the possibility of making a pre-nuptial agreement.
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