Are changes afoot with regards to Pre-Nuptial Agreements?

February is famously the month of love and romance and people getting engaged.  It is therefore quite fitting that on 27th February 2014 the Law Commission is due to publish its Matrimonial Property, Needs and Agreements Report which it has been suggested will contain recommendations that prenuptial agreements should be protected by law.

By definition a prenuptial agreement is a written document between two people who are about to get married setting out the division of the matrimonial assets if the marriage is later dissolved.  Whilst these agreements are fairly common in cases where the parties have substantial assets, it is now becoming more common for parties to consider protecting their assets when entering into marriage.

However, prenuptial agreements are not strictly enforceable or legally binding in the UK (England and Wales).  There is always a possibility that if the marriage breaks down the court will not uphold the terms of the agreement.  Prenuptial agreements cannot exclude the jurisdiction of the Court to deal with financial issues on marriage breakdown.

When considering the division of the matrimonial assets, the court has very wide discretionary powers to distribute the assets as they see fit.  A prenuptial agreement is one of the circumstances the court will take into account when exercising its discretionary powers.

Whilst not strictly enforceable, a properly prepared prenuptial agreement could give a large measure of protection to the economically stronger spouse and could be totally effective on the breakdown of the marriage.  This was the point established in the Supreme Court decision in Radmacher v. Granatine in 2010.

The point is that if the parties entered into the agreement freely with a full understanding of the implications, then the agreement should be upheld unless it would be unfair to do so.

To ensure that any agreement entered into with your prospective spouse is held by the Court's in the future, it is essential that both parties seek independent legal advice.  To find out more information about prenuptial agreements contact Bethan Davies, Matrimonial Solicitor on 01743 285888 or email Bethan at bethand@terry-jones.co.uk.

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