Pre-Nuptial Contracts – use or ornament?
As spring gradually
emerges from the grip of another English winter many of us will be
putting the finishing touches to our wedding plans.
While it is to be hoped
that we don’t follow the example set by Ross Geller in ‘Friends’ and
while it’s also unlikely that our best friend will officiate at our
wedding dressed as a 1st World War soldier, it is possible
that other aspects of US TV life may be incorporated into the wedding
ceremony – such as being married in a hotel room or even on the beach in
the West Indies.
In fact the more
‘modern’ among us may even consider setting up pre-nuptial agreements
before they get married, just like they do in Hollywood.
Should we consider a Pre-Nup ?
The problem is that
American style Pre-Nuptial Contracts have no automatic legal standing in
the Courts of England & Wales, unlike in the USA and many parts of
Europe.
As the wedding day
approaches, most couples would probably consider it rather unromantic to
have to sort out the legal ramifications of a Pre-Nuptial agreement.
However such legal
contracts do have their place in certain circumstances. For example in a
marriage between mature partners who will not be having children, or
other marriages where there will be no offspring – or between one
exceedingly wealthy or exceedingly old person and one not so wealthy or
old!
What do the Divorce Courts think of Pre-Nups?
Under English law, when
partners marry and then separate the Divorce Courts have an over-riding
discretion over the division of all matrimonial assets, even though a
pre-nuptial contract may be in existence.
They exercise that
discretion with particular regard to the children's needs for support
and housing. Where there are no children to the marriage, the existence
of a pre-nuptial contract may have more influence over the Court's
decision.
What if we’re not Married but live together?
If you live with a
partner and do not get married, the rules are significantly different.
As you don't have a legal 'marriage contract', you would actually be
advised to take out some form of alternative agreement similar to a pre-nup
that records the financial basis on which you live together. At least
you can use this until such time as you marry, after which the influence
of this agreement would be reduced.
What is the future of Pre-Nups in English Law?
Many Family Law
specialists like those we have at Glaisyers welcome the proposed
changes the government are considering regarding Pre-Nuptial Contracts,
not least because they reduce the high cost of publicly funded divorce.
However, the type of
pre-nup contract the government has been considering would not over-rule
the jurisdiction of the Courts, but would increase the certainty for the
parties and potentially reduce the conflict involved.
The English Courts can,
if they so desire, already take account of the existence of a
pre-nuptial agreement, particularly if:
(a) it has been entered
into a short while before the marriage,
(b) it has been advised
upon by independent lawyers for each party,
(c) it was based on
full financial knowledge and understanding.
However, the Court will
still not want to see their discretion restricted by Pre-Nuptial
Agreements and can ignore them if they think it right to do so.
However, any changes to
the law are highly unlikely to include cases where;
(a) there are children,
(b) no advice was given, (c) there has not been full financial
disclosure.
It also follows that
any future legislation would specifically disregard any Pre-Nuptial
Agreement that was patently unjust, or entered into immediately before
the marriage, or one that was entered into under any form of duress by
either party.
If you have any
problems before, during or after marriage, you are strongly advised to
seek the advice of a Family Law specialist. Good advice taken at the
right time could save you thousands, in fact it could even save your
marriage even if your name’s not Posh or David.
David
Simon
Family Law Partner
Glaisyers solicitors
Printing House Street, B4 5DZ
Tel: 0121 233 2971
e-mail:
davidsimon@glaisyers.co.uk
