New Proposals on Pre-Nuptial Agreements

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The Law Commission has announced that they are shortly going to publish some proposals to deal with the issue of Pre-Nuptial Agreements.

At present, a Pre-Nuptial Agreement is not binding in law in the English Courts, but are recognised under the heading “All the other circumstances of the case”.  Therefore, if a couple have a Pre-Nuptial Agreement in place, a Judge can take it into account when considering all of the circumstances but, will not necessarily adhere to each and every clause within it.

The much publicised case of “RADMACHER” in 2010 confirmed that the English Family Courts should give weight to Pre-Nuptial Agreements if they were “freely” entered in to unless it would not be fair to do so – again, having regard to all of the circumstances of that particular case.

The Law Commission is to publish a report within the next month to include a draft Bill, but it is not anticipated that this will come into being until after the next General Election.

As is the case now, it is anticipated that the proposals will contain a recommendation that both parties will seek legal advice before entering into a Pre-Nuptial Agreement and it will also have a requirement to ensure that any party to a Pre-Nuptial Agreement will not be left “in need” following a divorce.

It will be essential for couples to get the appropriate legal advice before entering into a Pre-Nuptial Agreement, and they will have to be aware that prior to entering said agreement, often full and frank disclosure of the existing assets may have to be made.

The agreement should also be made in good time, and well in advance of any anticipated wedding day, or this could give one of the parties the opportunity to state that they only entered into it under duress, given the forthcoming marriage.

If done properly, with the appropriate advice etc, it is hoped that entering into this type of agreement will ultimately result in a couple having a more amicable separation should their marriage end as each already know what the outcome is going to be on a financial basis, before they get to that stage.  Further, it should save both parties legal costs again, as there will be little to negotiate, if the Pre-Nuptial Agreement has been drafted properly.

Judith Wright

About Judith Wright

Judith is an Associate within the Family Law department at Forbes Solicitors. Judith writes and advises on all areas of family law, including separation and divorce, dissolution of civil partnerships, financial settlements, prenuptial agreements, injunctions, Occupation Orders, matrimonial transfers of property, cohabitation disputes and issues regarding the arrangements for children.
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