Pre-marital or Pre-nuptial Agreements are currently not binding in English law, therefore only Case Law is applicable here.
Presently, the Court are more than likely to take it into consideration as ‘one of the circumstances of the case’ or as ‘conduct which it would be inequitable to disregard’ in Financial Remedy proceedings, which is the process of dividing the matrimonial assets upon the breakdown of a marriage.
The following will be considered by the courts when deciding how much weight to attach to a pre-marital agreement, namely:
- Did the parties receive independent legal advice?
- Did the parties provide full and frank disclosure?
- Was either party under any undue influence?
- Would an injustice be done by now holding the parties to its terms?
The importance of independent legal advice
In Radmacher, the Supreme Court held that the court should uphold a nuptial agreement if the following apply:
- The parties freely entered into the agreement.
- The parties had a full appreciation of the implications of the agreement when entering it.
- It is fair to uphold the agreement in the circumstances prevailing.
- (At paragraph 75.)
In most cases, independent legal advice will be required to evidence a party’s understanding of the implications of the agreement. In Kremen, Mostyn J said that only in unusual cases the court will decide that, absent independent legal advice, a party freely entered into a nuptial agreement with a full appreciation of its implications. In those cases, a party would need to show that the other party has a high degree of financial or legal sophistication to appreciate the legal rights he is signing away.
To satisfy this three-part test, notably to ensure that the parties freely entered into the agreement and appreciated its implications when they entered into it, each party should receive independent legal advice from a specialist family law practitioner.
We can represent you in drafting a pre-marital agreement or advising you in relation to one you have been asked to sign.