Many people in the UK think that pre-nuptial agreements are for famous people and for the very rich, but they are being used more and more in the UK now.
The slightly odd thing about a pre-nuptial agreement, more commonly known as a pre-nup, is, that they are not currently legally binding in England and Wales and as a result, not exactly enforceable either.
So you may think that a pre-nup agreement is just a waste of time, but although not legally binding, they do hold some weight in court.
There are a number of different takes on a pre-nup, with post-nups and pre or post-civil partnership agreements. The only difference is whether the agreement refers to a marriage or a civil partnership and whether the agreement is put into place before or after the ceremony.
Either way, the effect is the same. What happens in the event of a divorce or dissolution of civil partnership is that the court will decide how they will split the couple’s assets. The court has a great deal of scope to make decisions based on a number of factors and if there is a pre-nup in place, this can be taken into account by the court during this process.
At the current time, following a decision in the Supreme Court in 2010 in the case of Radmacher v Granatino, any pre-nup that was entered into freely by both parties and with a full understanding of its implications, should be enforced by the court, as long as it was not unfair to do so.
Prior to the Radmacher v Granatino case, the UK court system said that a pre-nup was invalid because the person who obtained it knew that the marriage was going to break down and that was the sole reason for the pre-nup.
So the strange position in the UK is that whilst a pre-nup is not a legal document, it definitely does carry weight in court in the event of a marriage breakdown, as long as it has been prepared properly and that both parties are in agreement.
This may be set to change though, with the announcement by the Law Commission that pre-nups will be made legally enforceable by creating a new statute in the coming years. This can only help with the effectiveness of current pre-nups too.
Before you get married or enter into a civil partnership, it may be worth discussing the option of a pre-nup with your partner and if you both agree, speak to a solicitor to draw one up.
This information provided in this article is not intended to constitute legal advice and each relationship breakdown requires careful consideration in our view by a fully qualified Solicitor before decisions are made and before you embark on a certain course of action.
Shak Inayat
Solicitor
0207 183 2898
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