A pre-nuptial agreement is a contract a couple enter into before they get married, which is intended to outline what would happen with regards to their financial matters were they to separate at a future date. Strictly speaking these agreements only apply to couples who are married but later divorce, although unmarried couples who live together can have a similar written agreement. Recent discussion surrounding pre-nuptial agreements has begged the question; are they legally binding? If a financial dispute develops within a divorce case and the court is called upon to resolve, the court will only apply the relevant law. As yet there is no law stating that pre-nuptial agreements must be upheld. However, recently the courts have said that in certain circumstances the existence of a pre-nuptial agreement may be the most important feature in the case and that its terms should be upheld. To be taken into account by the divorce court the agreement will need to:
- Be clear and comprehensive
- Make proper provision for children, including future children
- Be based on full financial disclosure by both parties
- Follow on from both parties having had independent legal advice
- Be signed in an atmosphere where there is no suggestion of pressure being put on one of the parties
- Be signed at least three weeks before the wedding
A pre-nuptial agreement is not binding on the court but if correctly drawn up it is likely now to have a major influence on the decision that the courts ultimate make. There are plans for this area of the law to have a major review in the near future and this may mean that these agreements become binding on the courts. If a couple do not have a pre-nuptial agreement, which the vast majority do not, then any disputes about the family finances will be sorted out in the usual way, with the court applying the relevant law to the particular circumstances of the individual case. For further advice on pre-nuptial agreements, or any other family issues, please contact Lindsey Canning on 0114 266 6660 or email [email protected]
