Pre, Post-Nuptial & Separation Agreements
You may have read about the concerns many legal practitioners have in relation to pre-and post-nuptial agreements. Whilst it is the case that they are not binding in English law, they will be considered by the Court and are likely to be upheld, providing a three step approach, based on the state of the law at the time of relationship breakdown, not at the time the agreement was entered into, has been followed. When you are contemplating marriage, it must be borne in mind that the future financial position of yourself and your intended spouse simply cannot be known at the time of your marriage to each other.
The law in relation to pre and post-nuptial agreements changed significantly following the decision of the Supreme Court in the important case of Radmacher -v- Granatino, in 2010. The Court did not think it appropriate to distinguish between pre and post-nuptial agreements and held that in relation to both pre and post-nuptial agreements the Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances it would not be fair to hold the parties to their pre or post-nuptial agreement.
The Supreme Court has given us us a specific approach to assessing whether divorcing couples should be held to a pre or post nuptial agreement. In essence, those matters are:-
- the husband and wife need to enter into the pre or post-nuptial agreement of their own free will, without undue influence or pressure and need to be informed of its implications;
- the Court recommended material financial disclosure of the financial circumstances of each party, together with both parties having “sound” legal advice on the implications of it;
- the husband and wife should intend the pre or post-nuptial agreement is to be regarded as effective.
In addition to these matters, there are circumstances surrounding the making of the pre or post-nuptial agreement that are likely to enhance the likelihood of it being upheld and these include whether there was a foreign element, i.e. whether the parties to the pre or post-nuptial agreement came from a jurisdiction in which pre-nuptial agreements were common and were generally upheld. In the Radmacher case, the Wife was German and the Husband was French and they were both therefore from jurisdictions in which pre-nuptial agreements would be upheld.
Consideration would also have to be given to the circumstances at the time that the Court is being asked to make a financial order based on the pre or post nuptial agreement.
Clearly this would have to be approached on a case by case basis and different cases would have different outcomes. Nevertheless the Court did give the following indications:-
- a pre or post-nuptial agreement would not be allowed to prejudice the reasonable requirements of any children;
- the Court specifically mentioned the issue of one party wanting to protect non-matrimonial property (that is, assets built up before the marriage, or kept separate during the marriage);
- as long as a pre or post-nuptial agreement provided for the needs of the parties (and any children), the Court would be unlikely to interfere with the terms of the pre or post-nuptial agreement, even if the parties were, in effect, contracting out of the “sharing” principle which exists when a court is considering how assets should be divided upon the breakdown of a marriage. It is this sharing principle that often leads to higher financial awards in favour of the financially weaker party within divorce proceedings.
If a pre or post-nuptial agreement is to have any prospect of succeeding, all these matters must have been contemplated and both parties must have obtained independent legal advice in respect of the pre or post-nuptial agreement. Breakthrough family law would be delighted to help you with any aspect of a pre or post-nuptial agreement.
So far as separation agreements are concerned, these are agreements arrived at between the parties to a marriage once a decision has been taken to end the marriage, but in circumstances where there are no ‘immediate’ grounds for divorce available. This situation arises where neither party can establish against the other either adultery or unreasonable behaviour. Consequently the husband and wife would have to wait for a period of time of living separate and apart from each other, either for two years, at the end of which the other party must give their consent to a divorce, or for five years where that consent is not forthcoming.
In this situation, it is natural for both parties to consider reaching agreement about the financial consequences of their separation, both during the time of separation and after divorce proceedings have been concluded. Providing an agreement can be reached between the parties, at this point, it is a good idea to consider having a separation agreement in place which will set out the financial arrangements which are to take place before and after the divorce proceedings are to be concluded. However, it is important for both parties to understand that until divorce proceedings have been commenced there is no one single ‘mechanism’ to enable the parties to the marriage to ask a court to intervene at this stage because it is only within divorce proceedings that a court can make a final order in relation to the finances of the case. Nevertheless, providing there has been full disclosure by the parties to each other of their respective financial positions before the separation agreement is entered into, and on the assumption that both parties have received legal advice in relation to the agreement, then it is arguably better to have a separation agreement in place then not to have anything at all. The separation agreement would then provide good solid, cogent evidence of what the parties had intended at the point of their separation when it comes to finalising the financial arrangements within the divorce process. It has to be said that if one party or other made it clear, at the time of the divorce proceedings, that they no longer wished to stand by the terms set out in the separation agreement that there might be a ‘battle’ to persuade a court that the agreement should be allowed to stand. It is worth remembering though that if no such written agreement were in place, then an oral agreement is most unlikely to be upheld.
It should be noted that a separation agreement is a separate matter to a post-nuptial agreement because a post-nuptial agreement would be entered into at a time when the marriage had not broken down but would be intended to reflect the parties’ wishes should the marriage ultimately break down. A separation agreement would set out a financial agreement, at the point of separation, once the parties had decided to end the marriage.
Regardless of your individual circumstances, Breakthrough Family Law can help you with any, or all, of these agreements.Call Breakthrough Family law on 01494 776696 for consultations in Beaconsfield, Berkhamsted, Harrow and Mayfair, London.
During weekends or if you have an urgent matter, please call us on 07973 955775
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