About to get married to the love of your life whilst making plans for how assets and finances should be split upon divorce isn’t always appealing.  However, for some it is important to think about these things and come to a decision early on with your spouse to be, in the event of possible relationship breakdown.  Normally, one party will wish to protect assets that have been acquired prior to the marriage, outlining in an agreement that they should not become the subject of matrimonial property in the event of divorce. ‘Pre-nuptial’ (or ‘pre-marital’ as they are sometimes referred to) agreements have not traditionally been enforced in the courts of England and Wales.  It is the case still, that although these agreements are binging, they do not oust the jurisdiction of the court and so a court may chose not to take account of what is provided for in the agreement.  The court can use its discretion as it sees fit to make financial orders under the Matrimonial Causes Act 1973. In recent years however, the court has begun to attach an ever increasing amount of weight on pre-nuptial agreements, providing that certain safeguards are met in full.  Both parties need to enter into the agreement of their own free will and without having been pressured into it by anyone.   They must also be fully aware of the implications of the agreement and must have been given all of the information available that relates to the terms of the agreement.  Both parties must intend for the agreement to be binding, and therefore cover all financial matters should their marriage come to an end.   A pre-nuptial agreement is a legal contract and so must also comply with contract law provisions.  There must be an offer, acceptance of that offer and an intention to form a legal relationship.  There must also be certainty and consideration.  For the pre-nuptial agreement to be effective, it must be made by deed and therefore be classed as a valid contract.  The document must contain a statement of truth signed by both parties, confirming that they understand the content of the agreement and it is important that the agreement is not made within 28 days of the wedding or civil partnership ceremony.  Both parties should have received all information crucial to making the decisions in the agreement and finally, they must each have sought legal advice at the time that the agreement was formed. Therefore, a pre-nuptial agreement show the parties intention to enter into a binging contract regarding their finances.  They are not necessarily binding, but may carry significant weight depending on the case itself and the courts approach. You may think that the formation of a pre-nuptual agreement is pretty straightforward.  It isn’t!  All provisions must be taken into account and dealt with properly, and for that reason we would not advise you to draft such document yourself.

If you require any legal advice in relation to the formation of a pre-nuptial agreement, contact us on 01244 893133 and make an appointment to speak with one of our lawyers.  We offer all clients an initial 30 minute FREE consultation.

 

Hayley McConville