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Family Law Myths No.5: Pre-nuptial agreements are not worth the paper they are written on

This is no longer true, but as with a lot of things in law, the answer isn’t black and white!  While there is no legislation to deal with pre-nuptial agreements in the UK, there is a growing body of case law which includes the well-known case of Radmacher v Granatino.

As it stands, the law in England currently states that pre-nuptial agreements are not automatically binding.  However, if properly prepared, they may well be upheld in the future.  So what does doing it properly mean?  Well, Radmacher sets out the key criteria for a pre-nuptial to be capable of being upheld (although these do not automatically meant that it will be upheld):-

  1. The agreement must be freely entered into (including with each party taking independent legal advice)
  2. The parties must have a full appreciation of the implications of the agreement (which means the parties having had benefit of full financial disclosure from each other so they understand what future claims either may be giving up); and
  3. It must not be unfair to uphold the parties to their agreement in the circumstances at the time of the divorce. This is something which will turn on the individual facts of each case.  Pre-nuptial agreements are more likely to be upheld in short marriages, as there is less chance of the agreement having become out of date or superseded by unforeseen events in the course of the marriage.

This is an area of law which is in desperate need for reform.  In fact in Radmacher as long ago as 2010, Baroness Hale, who until recently was the President of the Supreme Court, described the area of law ‘a mess and ripe for review”.  In 2014 the Law Commission prepared a report which made recommendations for pre-nuptial agreements to be legally binding.  Although this has received some consideration by the Government in 2017, anything is yet to come of it.

For now, couples considering entering into a pre-nuptial agreement should each seek independent legal advice and do what they can to ensure that it is done properly.  If they do, there is far more chance of the agreement being upheld later.

For more information on the issues raised in this blog please do not hesitate to contact one of the team at Rayden Solicitors.

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