A pre-nuptial agreement can be entered into
before marriage and is intended to
determine how a couple’s assets should be
dealt with if they separate after marriage.
There are many types of agreement, such as a co-
habitation agreement, a post-nuptial settlement or a
declaration of trust, all of which aim to regulate
financial arrangements between a couple.
Following the Case of
Radmacher v Granatino 2010
there
is now guidance that solicitors can follow to attempt to
ensure that a pre-nuptial agreement is upheld. However,
it is important to note that pre-nuptial agreements are
not always enforced and the Court will always retain the
authority to consider financial matters upon divorce.
Of course if a couple separate, and both stick to the agree-
ment, there is no need for contested court proceedings. It
is only when one party to the agreement changes their
mind that court proceedings are likely to be issued.
There is no doubt that a pre-nuptial agreement is a wise
choice for some couples and can be relatively
straightforward. For example, an older couple who both
bring assets to the relationship, where perhaps either or
both have had a previous relationship or civil partnership,
may wish to protect wealth for one of the party’s children.
Although the idea of a pre-nuptial agreement may be
attractive, for many the idea of discussing a financial
arrangement to be put in place should the relationship
breakdown can seem very unappealing.
However, I truly believe that the process of discussing
financial arrangements can be very positive. It can
strengthen a couple’s ability to communicate, whether
or not the outcome is a pre-nuptial agreement. There is
certainly help available for couples if needed and the
collaborative law process is often used to great effect.
Many matrimonial lawyers will now draft a pre-nuptial
agreement or will advise on the contents of an
agreement. It is highly recommended that both parties
should obtain independent legal advice so that the
agreement is drafted properly, and so that it is certain
that the other party understands the terms and the
effects of the agreement.
Open disclosure of each party’s financial assets is
important in order that each party can be advised as to
the effects of the agreement, both immediately and in
the longer term.
To ensure that neither party has been placed under
pressure to sign the agreement, it is recommended that
any agreement is entered into in plenty of time before
the marriage.
Should an agreement come before the court it must be
seen as fair – the court will consider both the process
and the terms of the agreement itself. A judge will take
all the circumstances of a case into consideration if
proceedings are ever issued and a pre-nuptial agreement
will be a significant piece of evidence for the judge to
consider. If entered into freely with a full understanding
of its implications it is likely to be binding, unless the
court decides that it would be unfair to uphold it.
Fiona Connah is a partner and head of the Family Depart-
ment at QS Howlett Clarke’s Southwick Office,West Sussex.
Howlett Clarke also has an office in the heart of Brighton.
pink weddings magazine 58
SolicitorS
hold on
To have and to
In recent years more couples have expressed
an interest in making a pre-nuptial
agreement. Solicitor
Fiona Connah
gives you all you need to know
