With the wedding season fast approaching, Bethan, in our family team, has been looking at pre-nuptial agreements and whether they are worth it…
A lot of the case law relied on comes from agreements that have been drafted in other countries, with the parties seeking to enforce their agreement after relocating to the UK. Nevertheless, and contrary to the popular belief, this does not mean that pre-nuptial agreements are not recognised in this country.
Thirteen years ago, back in 2010, the case of Radmacher v Granatino saw the Supreme Court conclude that Mr Granatino should be bound by the terms of the pre-nuptial agreement he and his wife entered into. In coming to this conclusion, the court held the view that the parties freely entered into the agreement, and had a full appreciation of its implications. This was a landmark case for England and Wales and set precedent for how pre-nuptial agreements would be viewed going forwards; as a result of which, many lawyers now strongly recommend pre-nuptial agreements to their clients.
Another common misconception is that pre-nuptial agreements are only suitable for those of extreme wealth. We see many people marry for a second time, and not consider protection of their pre-marital wealth, whether that be pre-acquired property or pensions. One huge consideration should always be the parties’ children. Where a party has children from their first marriage, then they go on to marry their second husband or wife, they may wish to consider protecting their family wealth for their children in the event of a divorce.
It is safe to say, that should a pre-nuptial agreement not be fairly drafted, leaving one party unable to meet their needs and another party continuing with a high standard of living, that no Court would enforce such agreement. This is why it is very important firstly, to consider the needs of the parties and that each of their needs are met should any agreement be enforced. Needs are always the first consideration when considering a division of assets.
Overall, so long as careful consideration is given to the drafting of the agreement, the cost and benefits of preparing a pre-nuptial agreement will not only significantly outweigh the costs of financial remedy proceedings, but also will save the parties from distressing and protracted court proceedings should the marriage break down.
If you require any advice or need assistance on this or any family matter, please contact the Family Team at Talbots Law by calling 0800 118 1500