A pre-marital or pre-nuptial agreement is an agreement reached between two parties who intend to marry and wish to set out their financial and legal rights in the event that the marriage breaks down. Presently pre-marital agreements are not absolutely binding in this country. The Court still leaves matters in the hands of any District Judge on a marital breakdown who has a wide discretion to make orders on various factors. One factor taken into account is any pre-nuptial agreement, but is not necessarily conclusive because the Judge takes into account any changes in the nature of the relationship both in relation to children, employment needs, resources, etc.
The law in relation to pre-nuptial agreements is developing and a Bill has been introduced into the House of Commons dealing with the issue of pre-nuptial agreements and a proposal that pre-nuptial agreements are to be binding subject to independant legal advice, full disclosure and on the basis that the agreement was entered into at least three weeks before the marriage.
At present qualifying pre-nuptial agreements are on the basis that both parties have full disclosure, that both parties have legal advice and are signed not later than 28 days before the wedding. these are in the form of a deed and both parties give a statement that they have understood and they are contracting our of the Court's jurisdiction.
There are usual principals such as fraud and undue influence would also apply.
The Court retains jurisdiction to ensure that the needs of the parties and any children are met. However at the moment this is again one of the factors the Court would take into account.
Therefore, if you are planning to marry and wish to enter into a pre-nuptial agreement, it will not be sufficient to leave it until a week before the wedding as it is simply too late. you should also bear in mind that changes to the family situation and dynamics can alter a pre-nuptial agreement and, until the law becomes more certain, the Court can disregard this, take it into account as one of the factors but then disregard whether it should apply.
It is imperative that certain minimum safeguards are met to give a pre-nuptial agreement the best possible chance of success. Those guidelines include:
- Provision must be made for children;
- Both parties should have taken independent legal advice;
- Both parties should seek independent accountancy advice
- Neither party should feel pressurized into entering into the agreement;
- The agreement must be fair;
- Full financial disclosure must have been made;
- The agreement must have been drawn up at least 21 days prior to the marriage
- The agreement should include clauses allowing it to be reviewed on certain events like the birth of a child.