The legal recognition of nuptial agreements has been on the agenda for reform for many years. Whilst the short answer to the above question is “fiction”, that doesn’t tell the whole story.
It is now much easier to give legal advice, confirming the extent to which a nuptial agreement will be considered by the Court. Marrying couples should be aware that having a pre-nuptial agreement can drastically change the outcome of a case in divorce proceedings.
Helen York, a partner in the Family Team comments: “We advise our clients that it is better to have a pre-nuptial agreement than not, particularly in those instances where pre-acquired wealth, such as a family business, may need protecting. In law, a pre-nuptial agreement is not binding on the Court, however, it is one of the factors that the Court will take into account when making a final order. So having it is important”.
When having a pre-nuptial agreement prepared, it is important that the formalities (such as exchanging financial disclosure, obtaining independent legal advice, to name but a couple) are complied with. It is likely that this will result in the Court attaching more weight to the document. It is very important that the agreement is fair on the face of it and any potential children are considered. This is likely to be the single greatest factor resulting in a pre-nuptial agreement failing.
There are still many campaigns for the validity and enforceability of pre-nuptial agreements to be enshrined in statute, because the situation at present still creates a plethora of uncertainty. The message, for now, seems clear though, if you have assets to protect and your future spouse is willing: enter into a pre-nuptial agreement.
If you are thinking about having a pre-nuptial agreement and would like some more information please contact our Family & Matrimonial Team on 0800 088 6004.