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Prenuptial Agreements to become binding in law?

Here at CSL Law we often get asked about prenuptial agreements and whether they are recognised under English law. This is a hot topic at the moment and is a fast developing area law in England and Wales.

Of course to some people the idea of having a prenuptial agreement may be an unromantic idea, but we find that more and more people are interested to find out about them, and for different reasons.

For example, these agreements may be appealing particularly to someone who is contemplating a second marriage and wants to avoid repeating the experience of a lengthy or expensive divorce.

We also find that people with children from a previous relationship, and who want to provide them with some financial security, may also be interested in finding out more about prenuptial agreements.

Finally, people who are bringing property and assets into the marriage unmatched by their partner and are looking to secure this in the event of a divorce may also think about having this type of agreement.

The current position in law is that a couple can make a prenuptial agreement, and indeed a postnuptial agreement (that is an agreement that is reached after the marriage or civil partnership ceremony), to cover what will happen to their property and assets in the event of divorce.  However, it is important to be aware that at present prenuptial agreements are not currently binding and the courts do not always follow them.  What they do show is the couple’s intentions and this may carry some weight with the court should a dispute arise.

The Law Commission has now published a report recommending a change in the law so that married couples and civil partners can make agreements which will be legally binding after a split.

The report recommends that there is legislation to introduce ‘qualifying nuptial agreements’. These would be enforceable contracts which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution. However, these qualifying agreements could not be used by people to exclude meeting the ‘financial needs’ of each other and of any children, for example claims for maintenance or somewhere to live after divorce.

The report recommends that there would need to be procedural safeguards in place for the agreement to become a ‘qualifying nuptial agreement’. These would be that:

–          Both parties must have legal advice;

–          Both parties must have disclosed all relevant information about their finances; and

–          The prenuptial agreement must be made at least 28 days before the wedding or civil partnership.

The government will now consider and consult on the law commission report and time will tell whether it would be adopted into law.

In the meantime, if you would like to know more about a prenuptial or postnuptial agreement then please not hesitate to contact us for further advice and visit our contact page or Divorce and Relationships page.