Prenuptial and postnuptial agreements are not yet legally binding in the UK but since the ground breaking case of Radmacher in 2010 the courts are taking these into account as a factor when considering division of the matrimonial assets. Historically, the decision has depended on the judge but now the courts are attempting to give the power back to the parties. Cases show how the courts are struggling to find a balance between granting the parties autonomy over their financial futures and using the court’s discretion to achieve fairness.
The court will now uphold an agreement if it is properly drafted, both parties have received or had the opportunity to receive independent legal advice, given full and frank financial disclosure to each other, entered the agreement at least 21 days before the marriage, taken into account significant changes in the future and the agreement is fair and realistic.
An agreement does not mean the parties can agree to ignore the jurisdiction of the court. The fundamental principles of law will always take precedence. In the interest of fairness the courts will consider all the circumstances of the case and each case will be judged on its own merit. Lord Justice Thorpe once said “it does seem to me that the role of contractual dealing, the opportunity for the autonomy of the parties, is becoming increasingly important”.
The old myth is being dispelled that prenuptial agreements are only for the super wealthy. If you are bringing money and/or assets to the marriage, if you are likely to receive an inheritance, or if you are about to enter a second marriage you may want to protect these assets by entering into a prenuptial agreement.
The law commission has recommended that nuptial agreements should become legally binding as long as they are on a prescribed form and adhere to certain safeguards. It seems fair that after the financial responsibility for the children and the couple are met, the remainder should be divided according to the agreements made prior to the marriage.
Article from West Essex Life