Agreements entered into before marriage to regulate the terms of settlement on divorce are common in the United States and some countries in Europe. At the moment they are not legally binding in England & Wales (because the principle is that the Courts should be free to make whatever orders they think necessary) but our Judges are taking them increasingly seriously, after the Supreme Court decision in the case of Radmacher v Granatino.
This means that a Court will not necessarily ignore a pre-nuptial agreement. A “pre-nup” is likely to be upheld by a Court if: both parties had proper legal advice before signing; the needs of any children were properly borne in mind; all financial facts were revealed in advance; each of the parties had “equal bargaining power” when drawing up the agreement; and there was no duress, undue influence or pressure as to its contents, or to make a party sign.
It may only be a matter of time before pre-nuptial agreements have the full force of law. Meanwhile they are a very useful way of expressing the couple’s intentions. And, of course, they do make you think carefully about your expectations and obligations in marriage generally.
For more in-depth information, have a look at our Miller Sands Law in a Nutshell Guide to Pre-Nuptial Agreements.