A pre-nuptial agreement is an agreement that is intended to create legal contractual relations between both parties. It is intended to determine the division of assets in the event of the breakdown of the marriage, annulment, judicial separation or divorce but they are still not binding in English Law. The Supreme Court’s decision in the case of Radmacher v Granatino  UKSC 42,  2 FLR 1900 confirms this position although it is clear that at the time, many newspapers were reporting the decision inaccurately giving the impression that they were now in fact legally binding.
The Law Commission has since made recommendations that urgent legislation is required which is likely to allow for ‘binding’ nuptial agreements in the next few years. Certain criteria must be met in order to give the agreement a binding effect to include that it should be contractually valid, must have been made within 28 days before the wedding or civil partnership, both parties should receive full disclosure of information regarding the other party’s financial position and both parties should have received legal advice at the time the legal agreement was drafted. That being said, any pre-nuptial agreements that are currently being drafted, as long as they take into account the criteria, the Court would certainly attach significant weight to the document in any court proceedings.
The Family Law System in England and Wales is a discretionary system and it is usually the party that is financially stronger who wishes to protect their assets from this discretion and therefore wishes to enter into such an agreement.
If you would like more information, speak to our Family Law Solicitor, Louisa Gothard on 020 7998 7777 or email her at email@example.com.