It has long been a question whether pre-nuptial and post nuptial agreements are valid and enforceable.
A pre-nuptial agreement is one where the parties enter into an agreement about their finances in contemplation of marriage. A post nuptial agreement is entered into when the parties are already married. Although the rules have not been tested for a civil partnership, it is assumed that they will be the same as for married people.
The case of Radmacher v Granatino has highlighted how the courts will deal with such agreements. The Supreme Court has indicated that any nuptial agreement should be given weight where it is fair to do so.
In brief, a nuptial agreement could be valid where it is freely entered into by the parties; where the implications of the agreement are fully understood; and where there is no duress. Ultimately, the court can still suggest the agreement is not valid it would not be fair to hold the parties to the agreement.
It is important that the parties entered into the agreement intending it to be effective. If there was any element of duress, fraud or misrepresentation, then the courts may not uphold the agreement. Ideally, the agreement should be signed a few months before the wedding date to avoid any suggestion that it was signed under duress.
The agreement should anticipate the reasonable requirements of the future children the parties may have. It is also useful to revise a nuptial agreement from time to time, to take into account any changing circumstances of the parties, such as the birth of children.
The court should also respect the decision of the parties, as to the manner in which their financial affairs should be regulated. So that if parties to a marriage are financially savvy, then the nuptial agreement should be upheld, if the other circumstances are fair.
Sometimes the parties agree that one of them will spend time looking after the family and the children, whilst the other will accumulate the wealth. In such circumstances, it would be unfair for the latter person to retain this wealth to the exclusion of the homemaker.
Although the parties should seek independent legal advice, and the courts will take this into consideration, it has been suggested by the courts that it is not a pre-requisite requirement that the parties must have received independent legal advice to have had a full appreciation of the implications of entering into an agreement. However, to protect the agreement, it is sensible for both parties to receive independent legal advice.
The parties should ensure that there has been full disclosure of their assets and income. There should be proper discussion and negotiations between the legal representatives of the parties, to ensure that any enquiries are dealt with, so there is no suggestion of non-disclosure.
If you are thinking about making a pre-nuptial agreement and would like some clear advice about how your position in relation to getting divorced please contact Shakeel on 020 8956 2655 or email us at firstname.lastname@example.org.