Q: Are they only for the rich?
No. Such agreements are increasingly being used by a wide range of people to seek to limit the claims that might otherwise be made upon divorce. An agreement more often relates to people who have:
- Built up assets prior to the relationship through their own endeavour – these do not have to be substantial; or
- Inherited money or received lifetime gifts prior to a relationship; or
- Anticipate receiving a large inheritance at some point in the future; or
- Already been through one divorce and want to avoid the stress of undergoing that process again and to protect the assets they received from the original divorce settlement.
Q: If I enter into an agreement can I avoid paying any money to my spouse on divorce?
It will depend on the circumstances and terms of the agreement. The aim is not to avoid paying them the other party anything but to limit the claims they might otherwise be able to make on divorce. You will always have to ensure that their needs are met upon divorce but if they are able to meet those needs from their own resources (and possibly their share of any joint assets) then it is possible that no payment will have to be made.
Q: If they are not legally binding, what is the point of having one?
Whilst Parliament has not passed a law to say that they are legally binding, the court is giving increasing weight to them. The leading case of Radmacher v Granatino specifically stated that “a court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.” This is clear guidance that where possible agreements should be upheld if they are entered into correctly and most importantly, they are fair in terms of the financial provision they give to the weaker party. If the agreement is not fair, for example, if it leaves that person with nowhere to live and no income on divorce, it is very likely that it will not be upheld by the court.
Q: How can I ensure that the court will uphold any nuptial agreement?
It can never be guaranteed that the court will uphold an agreement as the court will always retain the ability to alter the financial provision proposed in an agreement given the court’s wide powers. However, to ensure an agreement has the best chance of being upheld, it should be entered into (1) freely and without pressure from either party; (2) following full financial disclosure being provided of each person’s financial resources; (3) with each party having received independent family law advice; (4) (in cases of pre-nuptial agreements) entered into 28 days prior to the wedding (although this may not be essential and would not immediately invalidate the agreement); and (5) the terms of the agreement need to be fair.
Q: Can I draft my own prenuptial agreement?
We strongly advise that any nuptial agreement – pre or post - is drafted by a specialist family law solicitor to ensure that it includes all safeguards and provisions that will give it the best chance of being upheld.
Q: Should I discuss the prenuptial agreement with my fiancé/e / spouse?
Yes. It is advisable to first take legal advice as to the process of entering into a prenuptial agreement and the types of agreement that can be made. Following this, if you are comfortable to doing so, we advise you discuss the idea of the agreement with your fiancé/e so that (1) it does not come as a shock to them out of the blue in the run up to a wedding and cause unnecessary confrontation (2) they can understand the basis on which the agreement is being proposed and (3) you can reassure them that the terms of any agreement will need to be fair to them in order to ensure the agreement has the best chance of being upheld.
Q: How do I go about entering into a nuptial agreement?
We recommend you contact one of our specialist solicitors to arrange a meeting – contact details: firstname.lastname@example.org/ 020 3824 9950.
Robert Micklem founded the Family Law Agreements Group ('FLAG'), with solicitors from other family law practices, which provides a client focussed approach to the drafting and negotiation of nuptial, separation and cohabitation agreements.
FLAG adheres to a specific code of practice when negotiating such agreements to ensure that the discussions are conducted in as pragmatic a manner as possible with the ultimate goal of minimising the stress, anxiety and cost to the client.
Written by: Robert Micklem