Whilst any engaged couple would anticipate a life-long happy commitment, we are all pragmatic enough to know that marriages do increasingly end in divorce. A pre-nuptial agreement is a mature way of saying to one another how family assets should be fairly divided in the unfortunate event of the breakdown of the marriage. Such an agreement can be entered into, in the hope that the same agreement will gather dust over the years and need never be referred to in the future.
Previously a pre-nuptial agreement was considered contrary to public policy as it was thought to undermine the sanctity of marriage. However, it had been increasingly thought that, whilst not enforceable, such an agreement is an indication of the parties intentions as they entered marriage. In 2010 a Supreme Court Judgment in the case of Radmacher and Granatino has considered in detail the issue of pre-nuptial agreements (and post-nuptial agreements) and there has been a significant move towards the enforceability of these agreements.
The Supreme Court decided that in family law whilst nuptial agreements are not binding in themselves (because no-one can oust the jurisdiction of the Court) there will now be a presumption in favour of such agreements. In effect, the Supreme Court decided that a Court should give effect to a nuptial agreement that is freely entered into by each party, unless in the circumstances it would not be fair to do so. Therefore a Court will now uphold a pre-nuptial agreement in all cases save those where one party can show that it would be unfair to do so.
It is therefore good advice for clients (particularly those who bring to the marriage inheritances or family businesses or are entering a second marriage) to enter into pre-nuptial agreements prior to and in anticipation of marriage. As long as the terms of the agreement are entered into fairly and address both parties needs then it is likely that it will hold good.
At Francis Hanna & Co, we provide advice on all aspects of family law and assistance to clients on all aspects of pre-nuptial agreements.
For further information or for a free, no obligation discussion please contact 028 9024 3901 or contact us online using the contact us form.