Pre-nuptial agreements: fairness is key

The agreement sets out what will happen to your assets should your relationship break down and can minimise the risk of disputes and expensive court proceedings.

Although not automatically binding in England and Wales, the landmark Supreme Court decision in the case of Radmacher -v- Granatino in October 2010, was that nuptial agreements “freely entered into” would be upheld, but only if there were no factors rendering it unfair to do so.

To make an agreement fair, it should meet both yours and your partner’s needs and must be within the parameters of what a court would be likely to order in divorce and related financial proceedings.  For example, if an agreement provided for a young wife with four children to leave the marriage with £100, the court would ignore it and exercise its discretion to make appropriate provision for her. The court will not allow one partner to be left in a predicament of real hardship, whilst the other has more than enough to meet their needs.

To maximise the agreement’s influence over a court, the following safeguards should be met:

1. Neither you nor your partner should have been placed under any pressure or duress to sign the agreement.
2. Both of you should have given full and frank disclosure of all relevant financial and personal circumstances to each other, including any specific health considerations and inheritance expectations.
3. You should both take independent legal advice from specialist solicitors. Although your partner is not under an obligation to seek such advice, they must have had the opportunity to do so.
4. The terms of the agreement should be within the bracket of what a court would be likely to order in divorce and related financial proceedings.
5. The less your respective financial and personal circumstances have changed since the agreement was signed, the more likely it is to be adhered to.
6. You should both have sufficient time to consider the agreement, before the wedding. At Flint Bishop, we recommend that clients allow at least six weeks.

Our team of family solicitors is highly experienced in reviewing and preparing nuptial agreements. They take the time to gain a full understanding of your objectives and use their technical expertise and drafting skills to maximise the influence that the agreement will have on a court in the event of a divorce.