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Nuptial Agreements: Where are we now?

View profile for Antonia Kirby
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You will be held to the terms of a prenuptial or postnuptial agreement as long as it is fair.

From the days of my studies though, and the early part of my career, I always had it drummed into my head that Nuptial Agreements were in no way enforceable, and as such, in the United Kingdom at any rate, they used to be a waste of time. That is no longer the case.

It is encouraging, and interesting to see how vastly the landscape is changing. There is now a sweeping trend in the Family Courts in England and Wales to recognise these kinds of agreements, save for in circumstances where needs dictate otherwise.

Here’s the background for you. In the case of Hyman –v- Hyman in 1929, a principle was established that an agreement between a Husband and Wife could not oust the jurisdiction of the Court. Not only this, but prenuptial and postnuptial agreements were considered to be void and unenforceable as a matter of contract law, and of public policy.

It was not until 2010 where in the widely publicised case of Radmacher –v- Granatino it was established that the old “public policy” objection no longer applied, and that whilst the court could still vary agreements in the interests of either fairness or meeting need, there was no reason why agreements made between husband and wife should not stand.

The case law since that game changing case has built upon this new established principle. Only where one party would be left without their basic needs met will the Court vary a nuptial agreement.

When might you want a Pre-Nuptial Agreement or Post Nuptial Agreement?

  1. To protect family wealth or inherited wealth on divorce
  2. To have greater certainty about what would happen if there was a divorce – over 40% of marriages end in divorce. 
  3. You want to be organised
  4. Your want to have clear and frank discussions with your future spouse
  5. You have children from previous relationships and you want to protect them
  6. Future inheritance planning
  7. You have property or assets based abroad

The direction that the Judges are moving in, together with the UK Law Commission who have recommended that these kinds of agreements be contractually binding, is evidence that we are moving towards a more European Approach, where the parties’ well considered wishes are to bind them in future.

Will we ever get to a state whereby these agreements do oust the Court’s jurisdiction totally? Unlikely. However, the inherent risk of types of agreement, where properly advised, would appear to now be reducing each year.

If you are considering entering into a form of Nuptial Agreement, or indeed a Separation Agreement, and would like advice specific to your circumstances please do not hesitate to contact either me or my colleague Dominic Wisdom.

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