PRE-NUPTIAL AND PRE-CIVIL PARTNERSHIP AGREEMENTS

“Pre-nups” have received much press coverage recently, but just how far are they binding in our courts? Some sorts of agreements within families, for example the setting up of trusts, have been recognised as binding for centuries. And, since October 2000, we have had incorporated into our laws the Human Rights Act, linking us to European legal precedents in a way that means the European practice of honouring pre-marital agreements will be considered by any Court looking at such an arrangement.

At present, any such agreement contract entered into by a couple is a factor the Court can consider when making a financial order upon the marriage/civil partnership ending. It cannot, in English Courts, override the Court’s discretion to make different financial arrangements on divorce/dissolution. However, there are various steps the parties can take to ensure their pre-marital agreement is given as much weight as possible:

1. The couple planning to marry/register a civil partnershp should:
   1. Each seek their own independent legal advice before entering into the agreement.
   2. Each fully disclose to the other a true picture of their financial means and circumstances, with a summary of such means being attached to the agreement.
   3. Bear in mind that, on divorce or dissolution, a Court looking to review an arrangement will want to see if it leads to a fair division, on a basis of equality and if not, why not?
      
2. The agreement should:
   1. Make clear how any assets they are each taking into the marriage/civil partnership are to be held in future and how they will hold any new assets acquired.
   2. Address how the equity in the home will be divided and who will occupy it when the relationship breaks down.
   3. Address how their assets are to be divided in the event of the death of either of them.
   4. Be entered into not less than 21 days before the marriage/partnership ceremony.