Pre-marital contracts are entered into by agreement before marriage and attempt to set out what should happen to the couple's finances in divorce.

Pre-marital contracts

More than one in three marriages will end in divorce. This means that in life there is a high possibility that you will marry more than once. As a result couples require greater control over their financial assets.

When to consider a pre-marital contract

Where there is a substantial difference between your financial position and that of your fiancée;
Where you have been married before;
Where your family have contributed to your capital;
Where you have a previous family you wish to retain capital for;
Where you have assets you want to protect;
Where you want a method to resolve your finances in the event of your separation.

How we recommend you protect yourself

Pre-marital contracts are entered into by agreement before marriage and attempt to set out what should happen to the couple's finances in divorce. They give an agreed structure for resolving finances and may prevent the need for court involvement.

Current Law

Pre-marital contracts are not automatically enforceable in England and Wales at the moment. However, in autumn 2010, the Supreme Court, in the case of Radmacher v Granatino, effectively said that prospective partners, entering into pre-marital contracts (or pre-nups) with their eyes wide open, are likely to be held to them if they are found to be fair at the time of divorce.

Many other legal systems, however, will enforce these agreements strictly wherever they were drafted or entered into.

What the future holds...

In the recent past, recommendations have been put forward to the government to recognise pre-marital (pre-nuptial) contracts and to make them enforceable.

Tony Roe is a member of the Law Commission's Advisory Group on Marital Property Agreements. The Commission published a consultation paper in January 2011. Details, and the consultation itself, can be found at the Law Commission website. The closing date for responses to the consultation are due by 11 April 2011. The Commission is running a series of consultation events between February and April 2011, details can be found in our News section, here.