25th June 2020
Whilst trends do change, the months of April, May and June remain one of the most popular times to get married. However, many of us may know couples who have unfortunately had to cancel their wedding plans this year as a result of Covid-19.
A number of those people may have been thinking about pre-nuptial agreements and a number may have already put such an agreement in place. Those that do have an agreement, but no marriage, should, of course, still be able to rely on the agreement when they eventually do manage to tie the knot, assuming the marriage takes place in the not too distant future. For those who don’t have an agreement, they now have an opportunity to consider whether such an agreement may be helpful in their case.
Furthermore, for those people who have already got married, without an agreement, but wish that they had insisted on having an agreement, and there may be a number of people who fall into this category, there is always the option of having a post-nuptial agreement. Whilst the law has moved on in recent times, a properly completed post-nuptial agreement was often thought of being superior to a pre-nuptial agreement. This was because the completion of such an agreement, after the marriage removed the risk that one of the parties may have been pressured to sign an agreement as a result of an imminent wedding date.
It goes without saying that a spouse who finds themselves being presented with such an agreement only, say, 2 weeks away from the big day would be under considerable pressure to sign particularly if the other spouse indicated that the marriage may have to be postponed or cancelled if there was no agreement. It is often imagined that these circumstances, where a manipulative spouse ambushes the other shortly before the wedding, do not bode well for a lasting and trusting marriage. Whilst there may be some spouses who might behave in such an unscrupulous way, often the dynamics are more complicated and involve the wider family.
Interestingly, there may be some cases where neither spouse particularly want there to be a pre-nuptial agreement. In this situation, it may be that the parents of the wealthier spouse are pulling the strings in the background. There may be real concern, on the part of the parents, about their future daughter/son-in law and a genuine anxiety that upon a breakdown of the relationship, the funds that they may pass to their children may be exposed to a financial claim in the divorce court. Such concerns may result in changes being made to wills, alteration of tax mitigation plans and, of course, preparation of pre-nuptial agreements. If the parents are also paying for the wedding, there may be equal pressure on both spouses to enter the agreement.
This is always the 50 million dollar question ! No one, very understandably, wants to spend a lot of money on the preparation of an agreement only to find that it has miminal effect in the event of a subsequent marriage breakdown.
The underlying principle, as high-lighted in a leading case (called Radmacher v Granatino (2010) UKSC 42)), is that when the court is considering a financial claim following divorce it is not obliged to follow the terms of a nuptial agreement. A spouse can not, therefore, tie the hands of the court by insisting that the other spouse enter into a nuptial agreement and most people would agree that this has to be right.
However, and notwithstanding this underlying principle, the case of Radmacher also confirms that the court must give “appropriate weight” to a nuptial agreement; in other words, the court should consider whether the terms should be upheld.
This case, and subsequent cases, establish the factors that the court will consider when deciding what weight to attach to a nuptial agreement and these can be summarised, as a follows:
The agreement must be fairly entered into
If, therefore, a spouse is forced to sign, or tricked into signing the agreement (they might, for instance, be led to believe that it is a document for a different and inconsequential purpose) it may well be disregarded by the court.
The parties must understand the implications of the agreement
The parties must be aware of the effect of the agreement and understand what they, potentially, are giving up when they sign it. Generally, independent legal advice will provide evidence that a spouse understood the implications. Clearly there must, furthermore, be accurate disclosure of the financial circumstances of the parties, so that the financially weaker party can see the value of the claims they are potentially giving up.
Whether in all the circumstances it would be unfair to hold the parties to the agreement
If, for instance, the agreement provided for the wealth of the marriage to be kept by one spouse, where each spouse had played an equal role, albeit in different ways, in generating the wealth, the agreement is likely to be unfair. A classic example would be an agreement that provided for the husband to keep most of the wealth that he generated in the marriage where the wife gave up her career to look after the children of the family, leaving the husband free to build his career and generate wealth. Furthermore, an agreement which leaves one spouse in a predicament of real need, with the other spouse being financially comfortable, is likely to be considered unfair by the court.
If you are thinking of getting married, or are already married, and just want some initial advice to see whether a nuptial agreement may help you then please get in touch with our friendly and approachable team who are ready to help you find a way forward.
Call Benjamin Carter, Associate Solicitor, Family Law on 01256 844888, email firstname.lastname@example.org or speak to our online chat assistant via our website.
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The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.
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