Pre-nuptial agreements

Are pre-nuptial agreements relevant to the current divorce process? Where do you stand if you agreed to a pre nuptial agreement before your marriage and subsequent divorce?

Pre-nuptial agreements and divorce
The lives of the rich and famous of American celebrity culture have familiarised most of us with the notion of the arrangement made before marriage known as the pre-nuptial agreement which seeks to help sort out the finance after divorce in the event of a marriage breakdown.

For the average person in the UK a pre-nup can have little relevance when plans are being made to enter into a union that one would hope will last a trifle longer than the average Hollywood marriage, some of which appear to survive barely long enough for the ink to dry on the paper on which the agreement has been written.

Why draw up a pre-nuptial agreement?
Before contemplating a pre-nup it is essential that you consult with a qualified financial expert to make sure that you have the best advice before drawing up the agreement.  A pre-nup is usually entered into when one of the prospective marriage partners wishes to protect previously acquired assets in the event of divorce. However, the authority of the courts in England and Wales is paramount when dealing with divorce finances.

No pre-nuptial agreement will be upheld if a court thinks that it is being used to circumvent its normal jurisdiction or if the needs of any children involved would be compromised by trying to uphold the validity of an agreement made before marriage.

The tradition of the English (and Welsh) divorce courts is to take into account all the assets of a marriage at the time of getting a divorce and to distribute them as they see fit in accordance with the principles laid down by laws passed in Parliament.

Seeing into the future..or not
Pre-nuptial agreements cannot possibly forsee everything that may happen during the life of even a quite short lived marriage and may, fairly quickly, become irrelevant to a couple's circumstances. Furthermore, once children are involved their needs take priority even if the marriage has not been long lived.

Additionally, the courts in England and Wales do not take kindly to having their powers restricted by such agreements and will not hesitate to ignore them if they consider it they think it right to do so.

Conclusion?
Save time and money. The paternalistic nature of divorce law in England and Wales means that only on rare occasions do the courts uphold agreements made before marriage, unlike courts in the US which allow a couple in a divorce to have a much greater degree ...

To pre-nup or not to pre-nup? - that is the question

A pre-nuptial agreement is a written contract between a couple intending to get married that sets out an agreement as to how their assets would be split between them if their marriage were to end in divorce.

Are they legally binding in the UK?
The short answer is no, they currently have no legal standing in the United Kingdom.  The Courts have the right to impose any division of all the matrimonial property.  However, things may be changing as Courts are beginning to take some notice of pre-nuptial agreements.  As long ago as 1998 the government stated that they believed there are significant advantages to legally binding pre-nuptial contracts.

In practice the divorce courts will totally ignore any pre-nuptial agreement if it is believed to be in any way unreasonable to either of the parties involved.  This is especially the case if it sought to regulate the post divorce finances regarding the maintenance, well being and housing of the children.  There is little room for altering the way in which property is divided following divorce, regardless of whose name is registered as the owner of the couple's property a Court may order it to be transferred to the other as part of the divorce settlement.

Stay ‘single' and a pre-nup works just fine
The rules for unmarried couples are quite different.  A legally binding contract is enforceable and it is only a divorce that gives the Courts jurisdiction to intervene and make orders as to how the relationship is to be officially disassembled and the post divorce finances be organised.  The commonly held belief that long standing unmarried couples or cohabitees have the same rights as married couples by virtue of being ‘common law spouses' is a myth and does not exist in law.  

Pre-nups can be good in the right circumstances
Pre-nuptial agreements are not the answer to all divorce problems but there is an emerging consensus that for short, child-free marriages, they do have a distinct benefit which can shorten and make less stressful the process of divorce as well as make the transitions to life after divorce easier and quicker.