Deciding whether or not to enter into a pre or post nuptial agreement is typically a very sensitive matter that must be carefully managed. This may seem to state the obvious but it is not unheard of for things to go wrong and become acrimonious, even if the parties started out heeding such warnings. For soon-to-be married or newlywed couples, nuptial agreements can become such a divisive issue they risk destroying a fledgling relationship.

The primary purpose of course is to create an equitable way of agreeing upon asset distribution in the event of a separation. Given the conflict between the timing (at the beginning of a relationship) and the subject matter (its potential break up), it is advisable to deal with these issues from a collaborative law standpoint, as opposed to a purely adversarial approach, in order to stand the best chance of an positive outcome.

The English law position on nuptial agreements

The English courts’ position on this topic is a curious one. While nuptial agreements are not legally binding in the way that a commercial contract is, pre and post nuptial agreements are likely to be enforced if they are deemed to be entered into freely and where it would not be obviously unfair to do so. The existence of independent legal advice for both parties will be an important consideration.

The key case in this area is Radmacher v Granatino [2010]. This involved an arrangement which stipulated that neither party would benefit financially in the event that the marriage ended. A majority of 8-1 in the Supreme Court chose to uphold the agreement on the basis that they felt the parties intended to give effect to the terms. However they reserved the discretion to waive any pre or post nuptial agreement, especially where the interests of children are at issue.

The Collaborative law approach

The collaborative law process has proven to be very useful in family law contexts. How it works is as follows: the two parties each nominate a specifically trained collaborative lawyer and then the four individuals sit down and try to work out the relevant issues over a series of meetings. The key component is face to face contact as opposed to communication solely through lawyers in anticipation of a court date. 

Both sides sign an agreement that commits them to attempting to solve the issue without resorting to formal legal procedures and the lawyers who are involved in the process are precluded from going to court in the event that the process breaks down.

How collaborative law specialists can help in the area of nuptial agreements

Collaborative law and mediation not only prioritise practical knowledge of the law but also sensitivity. This is very important when attempting to compile or interpret a pre or post nuptial agreement as the continuation of the relationship is often seen as more important than winning the legal argument or negotiation.

Also on a more general level, collaborative law has the potential to save time, money and stress. As the parties are not driven by legal negotiation pressures or a court timetable they have more breathing space to try and work out their issues in a more amicable way.