Pre-nups
A pre-nuptial agreement is an agreement entered into by a couple before marriage and
seeks to
a. Decide how assets will be shared and divided in the event of divorce
b. Regulate finances during the marriage
c. Record an agreement as to the jurisdiction in which any proceedings for divorce will
take place.
PN will usually define assets as ‘matrimonial’ and ‘non-matrimonial’.
Sometimes it will classify assets which are inherited / gifted too.
Validity of PN’s:
PN’s may be binding following Radmacher 2010 which stated that the previous thought of
PN’s was contrary to public policy and out of date.
However, the PN will have to have been:
Freely entered into by both party (free will + no undue influence)
With full understanding of the PNs implications (independent legal advice and full
and full & frank financial disclosure and information material to the agreement)
Unless, in the circumstances it would not be fair to hold the parties to the agreement.
No fair to allow a PN to prejudice any reasonable requirement of any child to the
marriage
The PN will not be enforced if:
o The parties circumstances have changed in a way not envisaged by the
agreement when entered into (eg birth of a child)
NOTE: if there is any foreign weight to the agreement – what does the agreement state the
jurisdiction is in + what does that jurisdiction say about PN’s?
Generally – the longer the marriage = less fair it is to hold parties to it.
Law Commission suggested requirements:
Must meet requirements of valid contract
Been made at least 28 days before the wedding / CP
Parties get independent legal advice.
PN’s may be considered under s25 MCA factors when considering all the factors of the case.
PN’s should be regularly reviewed and assessed so that both parties are fairly represented in
the agreement.
May be better to have one than not have one.
Law of property (Miscellaneous provisions) act s2 – all the terms of any contract for the
disposition of any interest in land must be in writing and signed by all parties. This means an
informal agreement will not be enforceable unless properly recorded.
A pre-nuptial agreement is an agreement entered into by a couple before marriage and
seeks to
a. Decide how assets will be shared and divided in the event of divorce
b. Regulate finances during the marriage
c. Record an agreement as to the jurisdiction in which any proceedings for divorce will
take place.
PN will usually define assets as ‘matrimonial’ and ‘non-matrimonial’.
Sometimes it will classify assets which are inherited / gifted too.
Validity of PN’s:
PN’s may be binding following Radmacher 2010 which stated that the previous thought of
PN’s was contrary to public policy and out of date.
However, the PN will have to have been:
Freely entered into by both party (free will + no undue influence)
With full understanding of the PNs implications (independent legal advice and full
and full & frank financial disclosure and information material to the agreement)
Unless, in the circumstances it would not be fair to hold the parties to the agreement.
No fair to allow a PN to prejudice any reasonable requirement of any child to the
marriage
The PN will not be enforced if:
o The parties circumstances have changed in a way not envisaged by the
agreement when entered into (eg birth of a child)
NOTE: if there is any foreign weight to the agreement – what does the agreement state the
jurisdiction is in + what does that jurisdiction say about PN’s?
Generally – the longer the marriage = less fair it is to hold parties to it.
Law Commission suggested requirements:
Must meet requirements of valid contract
Been made at least 28 days before the wedding / CP
Parties get independent legal advice.
PN’s may be considered under s25 MCA factors when considering all the factors of the case.
PN’s should be regularly reviewed and assessed so that both parties are fairly represented in
the agreement.
May be better to have one than not have one.
Law of property (Miscellaneous provisions) act s2 – all the terms of any contract for the
disposition of any interest in land must be in writing and signed by all parties. This means an
informal agreement will not be enforceable unless properly recorded.
