A Brief Guide to Pre-Nuptial Agreements
A recent survey found that 44% of British men and 47% of British women would like to see pre-nuptial agreements made legally binding in the UK, but as with many other things, there are arguments both in favour of and against the enforceability of such agreements.Arguments in favour of enforceability
Arguments against enforceability
- That they provide greater certainty
- That they lower legal costs
- That they lead to there being less distress/acrimony between the parties
- That such agreements encourage marriage
- That they promote fairness
- That they provide the couple with contractual autonomy
- That they will lead to a reduction in what is known as "forum shopping" (that is, one or other party seeking to bring proceedings other than in the UK courts).
It is likely that there has been a significant increase in the number of couples drawing up pre-nuptial agreements in the United Kingdom, although statistics in respect of this are difficult to find. There is no central register of pre-nuptial agreements. Obviously if a couple feel bound by the terms of such an agreement should they divorce, there would be no need for them to litigate as to the enforceability or otherwise of it.
- That they are not "romantic"
- That they increase the chance of divorce
- That they can adversely affect the relationship between the parties since they have a high expectation that their marriage will end in divorce
- A fear that the more vulnerable of the parties could be disadvantaged, particularly if he/she has poorer bargaining power at the time that the terms of the agreement are being negotiated.
- That there is the possibility that unfair agreements may be entered into
- The possibility exists that there will be expensive litigation over whether an agreement should be binding or not, the circumstances under which the agreement was entered into, etc
- Following on from the previous point, the parties could be looking at more legal costs than would otherwise be the case
- Public policy considerations. Traditionally the English courts have held pre-nuptial agreements to be contrary to public policy on the basis that such agreements seek to exclude the discretion of the court when dealing with financial and property matters following divorce proceedings.
The factors that may have led to an increase in the number of pre-nuptial agreements being entered into will include the high level of awards that can be made by the English courts; a perception that pre-nuptial agreements will become binding at some future time; a greater public awareness of the financial consequences of divorce and the rising legal costs of the financial proceedings that can follow relationship breakdown.
Similar comments apply to couples considering entering into a civil partnership. Anyone considering entering into a pre-nuptial agreement or civil partnership needs to seek independent legal advice well before the pending marriage and to make a full and frank disclosure of his/her financial position.
PCM Solicitors services include the drafting of agreements for couples planning to marry or enter into a civil partnership, and advising on the legal status of existing agreements in light of recent precedents.
For initial free advice please contact Caroline Ford by email or phone 020 7959 2422.
Please also read our article on the recent Landmark Pre-Nuptial Agreement Ruling
