When entering into a marriage or civil partnership, people may wish to ring-fence assets they have acquired previously, in order to prevent their inclusion in a divorce settlement should the relationship fail.
Whilst the current position is that prenuptial agreements are not, in essence, binding or legally enforceable in UK law, they have increasingly had more influence as the courts accept that they are indications of a couple’s intentions at the outset of their relationship and more and more couples are signing them.
The much-publicised Supreme Court decision in Radmacher v Granatino marked a turning point in this regard, since when ‘pre-nups’ have generally been upheld by the English courts, provided they have been entered into with appropriate safeguards in place – such as independent legal advice having been taken by both sides.
In a recent case, however, the High Court refused to uphold a prenuptial agreement entered into by a city lawyer and his wife-to-be on the day before their wedding.
Following hard upon this decision, the Law Commission has introduced proposals for such agreements to become binding in future.In the absence of any agreement to the contrary, English law assumes that ‘matrimonial property’ (property or wealth generated during the marriage) is to be shared equally. That assumption does not apply to ‘non-matrimonial property’, for example any inheritance received or wealth brought into the marriage by one party. However, the law gives the courts a wide discretion to make appropriate financial orders to meet the parties’ ‘financial needs’.
The Law Commission has now produced a Report called ‘Matrimonial Property, Needs and Agreements’ which sets out proposals that pre-nups and post-nuptial agreements should be made legally binding by the creation of appropriate statute to provide for ‘qualifying nuptial agreements’.
The 231-page report reviews the law relating to the division of assets on relationship break-up. It recommends that the Family Justice Council produce authoritative guidance on financial needs, in order to iron out inconsistencies in how the courts approach such awards, but makes no recommendation for reform of the treatment of non-matrimonial property.
In all cases, the needs of children of the marriage will be the first consideration of the court.
The report points out that qualifying nuptial agreements are likely to be particularly useful in two situations. Firstly, they will be an important source of legal certainty for high net worth couples who want to make clear and reliable arrangements as regards their wealth – for example as a way of protecting an inheritance from being shared on divorce or dissolution. Secondly, they will be useful where the parties to a marriage or civil partnership have been in a relationship before and wish to safeguard a house or other assets for their children from that relationship.
Rocket Lawyer UK offer an online prenuptial agreement. Remember that the agreement must be completed and signed at least 4 weeks before your wedding. If you need further legal advice on your prenuptial agreement, we can connect you with one of our OnCall Lawyers.