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'Wedding planning – photographer, chocolate fountain, and pre-nuptial agreement?' by Tracey O’Dwyer.
26 September 2009

If you are planning to get married, should a pre-nuptial agreement form part of the plans?  Few people head into a marriage thinking that it may end in divorce, but with approximately 45% of marriages ultimately ending that way it is a harsh reality that people should at least consider.

With that in mind, if you should find yourself facing a marriage breakdown, you may well also find yourself involved in protracted and costly litigation to sort out finances.  Moreover, case law over the last few years often means one spouse exits a marriage, even a short one, with substantially larger resources than they brought to the relationship. 

For this reason, pre-nuptial or pre-marital agreements are gaining popularity as people attempt to have some say over the financial outcome, should there be a divorce in the future.  A “ pre-nup” can set down how the parties intend to deal with their current resources, as well as any future assets that either party might acquire, such as inheritances.

The question we are often faced with, as family law practitioners, is, “Will the pre-nuptial agreement be binding?”  Ten years ago the answer would have been, “They are of very limited significance, and probably not”.  Five years ago the answer would have been, “Possibly provided that they are done fairly, with legal advice on both sides and full disclosure.”  Today the answer is that they will have much more chance of binding the parties.

So what is the legal status of a pre-nuptial agreement?  There is no statutory legislation in England and Wales that affords them any definitive status, which is in fact at odds with the approach of many other European jurisdictions.  However, the Matrimonial Causes Act of 1973 has always had a provision that states that along with other specific factors, the court must also have regard to “all the circumstances of the case”.  It is this provision, or that of “conduct”, which the courts increasingly focus to give significant weight to the existence of a pre-nuptial agreement.

The recent case of Radmacher v Granatino [2009] EWCA Civ 649, [2009] 2 FLR, now appears to place less emphasis on the guidelines issued in the case of K v K (Ancillary Relief: Pre-Nuptial Agreement) [2003] 1 FLR 120, which included the need for independent legal advice on both sides, full and frank disclosure, fairness, and provision for children in the event that they are born.  However, it must be remembered that each case turns on its own facts, and also that Radmacher may yet be the subject of an appeal to the House of Lords.

For now, the situation remains that a pre-nuptial agreement may very well be given significant, if not determinative, weight in a future marriage break down.  For the sake of as much certainty as possible, our advice at is that the guidelines issued in the case of K v K should still be followed. It is advisable to execute a pre-nuptial agreement as far in advance of the marriage as possible.  The courts are less likely to be impressed by an agreement entered into on the eve of the wedding, than they are by an agreement prepared several months in advance.  The reason for this is simply that if a person is presented with an agreement that they are asked to sign, when the wedding is all arranged and imminent, they may well feel they have little choice but to sign it, or otherwise risk a cancelled wedding.

It may not seem romantic, but pre-nuptial agreements are becoming increasingly commonplace. Resolution, the Solicitors Family Law Association, says that ten times as many couples get them than a few years ago. They are accepted as a sensible step to, not only protect certain resources, but also to potentially minimising future acrimony, expense and wrangling in the event of a divorce.  The courts are now recognising that such agreements between adults, made at a time when they had their respective best interests at the fore-fronts of their minds, should now be acknowledged.

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