Whilst many couples see pre-nuptial agreements as a must, others consider these legal contracts as unfair and unromantic. In today's society pre-nuptial agreements are a common contract to be drawn up before marriage. For those who don't fully understand pre-nuptials, we asked Selachii LLP Solicitors to explain a little more about this legal contract.
What are they?
A pre-nuptial agreement, which is also referred to as an ‘ante-nuptial agreement,' is a written legal agreement entered into by a couple prior to their marriage. The contract sets out what should happen to their property in the event that they separate or divorce. A popular agreement states that each party will retain the property they own and will make no claim against the property of the other.
Who should sign a pre-nuptial agreement?
Pre-nuptials are a personal choice and there is no individual who should definitely sign such a contract. Pre-nuptials are popular where one party has substantial assets that they acquired prior to the marriage (for example, inheritance). To draw up a pre-nuptial agreement, a lawyer is hired and it is suggested that both parties have an opportunity to take legal advice before signing the agreement.
The legal position
Pre-nuptial agreements are common in other countries (where they are enforceable). Until recently they were not recognised by the law in the UK, as it was considered that they undermined marriage.
Pre-nuptial agreements are still not enforceable in the UK, as the court still retains a discretion to order a different settlement. However, agreements are taken into account, and will be given decisive weight by the court when it decides what orders to make, unless they are unfair.
The future
In 2009 the Law Commission began work on a project designed to review the law relating to ‘marital property agreements’, including pre-nuptial agreements. In its final report, published in 2014, the Commission recommended the introduction of “qualifying nuptial agreements”, which would enable couples to make enforceable, binding arrangements for the financial consequences of divorce.
In order for an agreement to be a “qualifying” nuptial agreement, certain procedural safeguards would have to be met, such as that they must not have been made within the 28 days immediately prior to the marriage, that both parties must have disclosed details of their means and that both parties must have received legal advice. The Law Commission’s recommendation has not yet been taken up by the Government, but it is thought by many that a change to the law along these lines is likely to happen in the near future.
Thank you to Selachii LLP Solicitors for providing the above information.