Amanda Quinn considers where we are with the law relating to pre-nuptial agreements...
Pre-nups have been in the press a fair amount over recent years particularly following the two big cases of Crossley v Crossley  EWCA Civ 1491 and Radmacher v Granatino  EWCA Civ 649 .
The Law Commission, the body which advises Government on changes to the law, is also interested in the topic, having included issue in the Tenth Programme of Law Reform. They are expected to start work on the issue late 2009, with a report and draft Bill expected in late 2012.
The masters of understatement, the Law Commission has this to say on pre-nups: “The issue may be of particular importance to those who have experienced divorce and wish to protect their assets, however extensive, from a future claim for ancillary relief.” You think?
The Centre for Social Justice has also got in on the act, and makes the following recommendations in its recent report Every Family Matters:
“Couples should have the opportunity to enter into pre-marriage and other domestic relationship agreements. These agreements should be binding provided they comply with certain preconditions. The family court should have a narrow discretion to override such agreements namely if the outcome of the agreement would cause significant injustice;”
So where are we currently up to with pre-nups?
It has been the case for some time now that a properly constructed pre-nup would be considered by the court as one of the “circumstances of the case” and upheld if in all the circumstances it was fair to do so.
However, the case of Radmacher, earlier this summer, has strengthened the position, and now more than ever pre-nups are more than likely to be upheld. According to The Times, “lawyers said the ruling signalled the end of London being seen as the 'divorce capital of the world', where people could pursue extravagant claims. Simon Bruce, family partner at Farrers, said: “English courts will now respect the agreements made by couples both before and after marriage. It is judge-made law, the courts plugging the gap left by government inactivity.” The ruling would help individuals to become 'masters of their own future.
Michael Gouriet, family partner at Withers, said: “This is a really significant development and shot in the arm for prenuptial contracts, with very senior judicial support for reform.”
Sandra Davis, head of family law at Mishcons, said there would be “a seismic shift” in how the courts approached prenuptial contacts. “The legal burden will start falling on the person who wants to extricate themselves from the prenup rather than, as now, on the person who wants to uphold it,” she said."
The position now would appear to be that providing the pre-nup meets certain conditions, the court is likely to uphold it. Those conditions would include:
That the agreement has been entered into freely without undue pressure – for instance ensuring there was some time between the wedding and the agreement.
An agreement signed the day before is less likely to be upheld, as the date of signature could imply pressure.
That there has been full and frank financial disclosure by both parties.
That both spouses fully understand the effect of the agreement.
While it was previously the case that both parties should have received legal advice for the agreement to be upheld, the husband in Radmacher did not – which was one of his points when asking the court to reject the agreement. However, you would increase the chances of your agreement being upheld if you did so;
That there have not been any unforeseen change of circumstances since the agreement was made. This means that in the event of a significant change you should have your agreement updated.
While it remains the case that until there is legislative reform no-one can guarantee that the court would uphold a pre-nup, it is certainly the position now that it is worth having one, and it should only be rejected should justice not be served by upholding it.