The Law Commission today released its report recommending the legal recognition of “qualifying nuptial agreements”.
As the law currently stands in England & Wales agreements made by a couple setting out how their assets will be dealt with in the event of a divorce (commonly known as pre-nups or post-nups) are not legally binding.
Following the case of Radmacher and Granatino in 2010, a principle was established that the Court should give effect to a nuptial agreement if:
- the agreement was freely entered into by the parties
- the parties had a full appreciation of the implications of the agreement at the time they entered into it and
- it is fair to uphold the agreement.
Whilst this case went further than ever in recognising their significance the Court still has a very wide discretion that leaves couples facing uncertainty. Family Solicitors across the country are today welcoming the recommendations because pre and post nuptial agreements can help to protect the future.
The proposed reforms will not only give couples control of their finances and make the outcome of their separation more predictable, but in turn it should make the separation less stressful and costly. With the proposed safeguards it is clear that agreements will not be able to be used by one party to shirk their responsibilities and leave the other in financial hardship or fail to provide for their children.
Entering into a pre nuptial ('pre-nup') or post nuptial ('post-nup') agreement is not saying your marriage is not strong or that it won't last forever, but instead we have a plan in place should we ever need one. When you go on holiday, buy a car or even when planning the big day you take out insurance. A pre or post nuptial agreement is insurance for marriage. You hope you never need it but in the event that you do you are jolly glad you had it.
By Caroline Watson, a Family Solicitor at Slater and Gordon Lawyers in Milton Keynes.
For a free initial consultation about a pre-nuptial or post-nuptial agreement call our Family Solicitors on freephone 0800 916 9055 or contact us online and we'll be happy to help you.