Since Prince Harry and Meghan got engaged, views and opinions have been given as to whether they should have a Pre-Nuptial Agreement. There are arguments for and against for each party. Most people may assume that prenuptial agreements are only used by wealthy millionaires or celebrities; however they are useful tools for many people.
A Pre-Nuptial Agreement is an agreement entered into by a couple before they get married (a Post-Nuptial Agreement can be entered into post-marriage). Whilst the potential breakdown of the marriage is not something that couples wish to think about before the big day, it is sensible for them to discuss the implications and their intentions in such a situation.
This can be particularly so in a situation whereby one or both parties are on their second marriage or they are marrying later in life and already own their own property and perhaps have grown up children. Each partner may wish to record that it is their intention to retain their own property for the benefit of their respective children. These agreements can therefore provide security and clarity for each family involved and make any potential disagreement in the future, more easily resolved.
Pre-nuptial Agreements are not yet 100% legally binding, but if certain criteria can be met, and reviews are built in to deal with future changes, then the court is more likely to bind parties to it. The Law Commission published a report on Pre-Nuptial Agreements in 2014 recommending that there be binding Pre-Nuptial Agreements known as ‘Qualifying Nuptial Agreements'. The detail and recommended good practice in the report is very helpful. There is now a Divorce (Financial Provision) Bill going through Parliament which sets out to amend the Matrimonial Causes Act 1973 so that written Pre-Nuptial and Post-Nuptial Agreements become legally binding if the parties have had independent legal advice, at least 21 days have passed between signing the Agreement and the marriage, proper disclosure has been given, it does not affect a third party who was not a party to the agreement, and it is not a contract which is unenforceable under any rule of law. The court can still make a relevant financial order in relation to a matter not included in the agreement.
If you wish to discuss this issue or your personal circumstances in more detail, then please contact Stephanie Bellchambers, Head of the Private Family department at Biscoes on 02392 370634..