helpful and straight to the point
Whilst it remains the case that judges hearing divorce cases have an almost unfettered discretion when dealing with financial matters they are required to have regard to a number of factors which are set out in Section 25 of the Matrimonial Causes Act 1973. Pre-Nuptial Agreements are not one of the factors referred specifically to. In these circumstances it might be thought, therefore, that there is little point in having a Pre-Nuptial Agreement in place prescribing what financial arrangements should apply in the unfortunate event of the breakdown of a marriage. However, under Section 25, the court does have a general duty to have regard to “all the circumstances of the case” and the existence of a Pre-Nuptial Agreement is one such circumstance. In recent years courts have been increasingly prepared to uphold Pre-Nuptial Agreements where they have been freely entered into with a full appreciation of their implications unless this would otherwise be unfair.
Factors which will make the court unlikely to uphold “Pre-Nups” on divorce include where one party has pressurised the other to sign the agreement or one party has deceived the other as to their financial circumstances or in respect of any some other material fact. Both parties will certainly need independent advice before entering into these agreements.
Pre-Nuptial Agreements are particularly worth considering for second marriages where there is a desire to preserve assets for children of a former marriage or, more generally, where one party has accrued assets prior to the commencement of the relationship.
If you are considering a Pre-Nuptial Agreement, we recommend that advice is taken at least a few months before the wedding to avoid any suggestion that it has been signed under duress.
Our solicitors are able to advise on this area and draw up Pre-Nuptial Agreements to suit your circumstances. Please contact Deborah Prance, Andrew Kingston, Tatjana Williamson or Amanda Dodge for more information.