Divorce – it’s easier with a Pre-nuptial Agreement

Pre-Nuptial Agreements are entirely practical and if your marriage never ends you can forget about the Agreement. If your marriage does unfortunately end in separation or divorce a Pre-Nuptial Agreement can avoid disputes, confrontation, hurt, upset and cost. A Pre-Nuptial Agreement may be the best money you ever spent.

Why have a Pre-Nuptial Agreement?

You may wish to have a Pre-Nuptial Agreement for the following reasons:

• To ensure your assets remain yours if the marriage fails.
• To ensure that a family business remains in the family.
• To protect one persons assets or at least a large proportion of them for the children especially relevant where there are children from the first marriages for example.

A Pre-Nuptial Agreement can clearly set out what is going to happen in the event that the marriage ends and avoid future confrontation. 

Where there is a substantial disparity in respect of the parties assets it may be the intention that this disparity be preserved rather than run the risk in future divorce proceedings that the assets are divided by a Judge and not as the parties intended.

Pre-Nuptial Agreements are legal in many states in the United States of America and also in European countries such as France and Germany. In Australia Pre-Nuptial Agreements are common place. The English Courts are now seeing more and more Pre-Nuptial Agreements. In the case of Baron J in MA v. MA 2006 EWHC 2900 (FAM 2007 1 FOR 1760) the Judge stated, “it is accepted that an agreement entered into between husband and wife does not oust the jurisdiction of this Court. For many years, agreements between spouses were considered void for public policy reasons but this is no longer the case. In fact over the years Pre-Nuptial “contracts” have become increasingly common place and are, I accept, much more likely to be accepted by these Courts as governing what should occur between the parties when the prospective marriage comes to an end”.

In 1999 the government issued a Green Paper “supporting families” promoting Pre-Nuptial Agreements and suggesting legislation which could make them binding. Whilst no legislation has been forthcoming the paper set out circumstances in which a Pre-Nuptial Agreement would not be legally binding.

A Pre-Nuptial Agreement is not likely to be legally binding in the following circumstances:

• Where there is a child of the family.
• Where under the general law of contract the Agreement would be unenforceable.
• Where one or both parties did not receive independent legal advice before entering into the Agreement.
• Where the Court considers enforcement of the Agreement would cause significant injustice.
• Where one or both of the couple have failed to give full disclosure of the assets and property before the Agreement was made.
• Where the Agreement is made fewer than 21 days prior to the marriage.

The position of the matrimonial Court is that they will look at how to divide the matrimonial assets and the Court will consider all the circumstances of the case, the first consideration being to the welfare of any child of the family whilst under 18. The Court has a duty to achieve fairness and can look at a Pre-Nuptial Agreement as part of the circumstances in the case. The Court will consider whether both parties received independent legal advice and understood the advice and terms of the Pre-Nuptial Agreement and were willing to sign it without any pressure.

The Court will want to make sure that the Agreement was made at least 21 days prior to the marriage and there were no circumstances where duress could be alleged. A Pre-Nuptial Agreement should provide for any children of the family and have provision for future children after the Agreement. The Court will want to make sure that both parties had received full disclosure of the other party’s financial circumstances. The Court will consider all these issues and apply fairness in all the circumstances of the case.

If you would like to discuss whether a Pre-Nuptial Agreement is appropriate in your case then please do speak to one of our specialist Family Law lawyers at Holmes & Hills Solicitors in Sudbury. Holmes & Hills also has offices in Colchester, Braintree, Witham, Halstead, Tiptree and Coggeshall.

At Holmes & Hills Solicitors we can advise you and draft your Pre-Nuptial Agreement for a fixed-fee.