It was reported in the Daily Mail yesterday that the Law Commission is due to recommend new laws regarding pre-nuptial, post-nuptial and separation agreements.
The Law Commission is actually not due to publish its report on Matrimonial Property, Needs and Agreements until the end of February 2014 but it is eagerly awaited by Family Solicitors.
Since the landmark case of Radmacher v Granatino in the Supreme Court in 2010 pre and post nuptial agreements in England and Wales are more likely than ever to be upheld by a Court upon subsequent divorce proceedings.
A Pre-Nuptial Agreement will record the financial circumstances of both parties at the time of marriage. It will also record how the couple would wish to deal with their assets, liabilities, income and pensions upon subsequent divorce. Whilst some people might find the idea of a “pre-nup” to be unromantic, it's a sensible and proactive way to seek to protect your financial position for the future.
Whilst pre and post nuptial agreements are not legally binding they are likely to be upheld provided certain criteria are met. In particular, it's important that both parties should seek their own independent legal advice and provide full disclosure as to their financial circumstances. The couple must enter into the agreement freely and well before the wedding, it is recommended that this should be at least 21 days in advance. Assuming that the prenuptial agreement is fair, gives reasonable provision for children and is regularly reviewed, say every 5 years and following the birth of each child; it is likely to be upheld by the Court upon divorce.
Nuptial agreements are increasingly being upheld by the Courts. A recent case of BN v MA concerned a wife’s application for interim maintenance within divorce proceedings. Mr Justice Mostyn found that “the Court should seek to apply the terms of the prenuptial agreement as closely and practically as it can”.
Amy Harris is a Family Solicitor at Slater and Gordon Lawyers in London.
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