There has traditionally been a perception that Pre-Nuptial Agreements are in some way a sign that the relationship is already doomed to failure and the process is about as romantic as a pair of beige polyester bed socks.
Unlike buying a house or acquiring a new phone, getting married or entering into a civil partnership is more of a spontaneous, sentimental and emotional decision, but its implications are so enormous it is wise to pay attention to more practical and less romantic considerations.
A well prepared Pre-Nuptial Agreement secures the parties' positions for the future and avoids uncertainty and disputes. It can also provide reassurance you are together for the right reasons - not simply because one is wealthy. A Pre-Nuptial Agreement can also help to avoid protracted and costly litigation and all the ensuing emotional angst that entails.
The position regarding the legal status of Pre-Nuptial Agreements is different north and south of the border. In Scotland, properly prepared Pre-Nuptial Agreements are enforceable and legally binding.
They can be altered or overturned if it can be shown that the agreement was not fair and reasonable at the point it was entered into. A Pre-nuptial Agreement is likely to be deemed unenforceable by Scottish courts if it was entered into very close to the date of the wedding or when one or other party has not received legal advice.
In England & Wales, Pre-Nuptial Agreements are not automatically legally binding, although weight is given to when parties entered into the agreement and its intended effect. The overarching question of 'fairness' is decided by looking at the circumstances prevailing at the time the marriage breaks down.
The person who seeks to challenge the agreement at the point when his or her marriage has broken down is in a far better position in England and Wales.
However, differences in approach between the two jurisdictions are narrowing. The case of Radmacher v Granatino made it more likely that a Pre-Nuptial Agreement would be taken into account, unless unfair to do so, in English courts. The Law Commission has recommended that Pre-Nuptial Agreements should be deemed legally binding, provided certain criteria on 'fairness' are met. Those 'tests of fairness' include:
- The husband and the wife both received independent legal advice about the agreement at the outset
- Full and frank financial disclosure of both parties' assets was made prior to the agreement
- Assets were not hidden.
- Neither party was under pressure or duress to sign the agreement against their will
- There has been no significant change which would make the agreement inappropriate (for example, the birth of children)
- The agreement has to be fair and realistic. If the division of assets is weighted too heavily in the favour of one party, it may be judged to be unfair by the courts
- Pre-Nuptial Agreements should be reviewed periodically and amended during the course of the marriage, particularly when any child or children are born
Some couples simply want a list of what each owned prior to marriage, to 'ring-fence' those assets and avoid confusion about who owned what. In other cases, the agreement is used to detail exactly what should happen in terms of who gets what, when and how.
A well-drafted Pre-Nuptial Agreement should involve careful consideration of the future, and parties' aspirations and plans.
Even when considering a relatively minor commitment such as a new smart phone, most people will search several websites to find the best deal. They will often speak to friends and family to find out details of the packages they have as a comparison. It can take weeks of research to decide which company you would like to commit to for the next 18 months.
How much more important then is that same expenditure of time and effort when considering marriage? Marriage is the biggest financial and emotional commitment many of us enter into but we continue to do so without seeking advice on entering into an agreement to protect our future financial position.
The key is to be clear about what both parties want through careful and tactful discussion. The more complicated agreements can require input from financial and tax advisers and even lawyers from different jurisdictions.
Some matters that are agreed may not be capable of enforcement and a poorly drafted agreement will only increase the problems if the marriage breaks down. Given the increasing likelihood of a Pre-Nuptial Agreement being considered legally binding north and south of the border, it is essential to ensure that your chosen family law advisor is alive to all the risks involved to ensure that the final version is as robust as possible.