The Supreme Court’s judgement today is an important one because it means that prenuptial agreements will be taken into account by courts in England and Wales when couples get divorced. It would need a change in the law for prenups to become legally binding in England and Wales but this is a step towards that and since the judgement, the Law Commission has started consulting on making pre-nups legal.
What the judgement means
If you and your partner plan on getting married and draw up a prenuptial agreement, it will be taken into account by the courts. There are certain conditions it should fulfil:
- The prenup should be entered into freely. Both of you should have entered the prenup voluntarily and without undue pressure and you should have been aware of the implications of signing it before you did so.
SAVVY TIP: Previously, lawyers used to say that prenups shouldn’t be signed less than 21 days before the wedding. This ruling doesn’t give detailed guidance on the length of time before the wedding that the prenup should have been signed. Instead lays out broad principles.
- Legal advice is desirable. In the case of Katrin Radmacher and Nicolas Granatino’s prenup (which was drawn up in Germany), Nicolas didn’t take independent legal advice although he was offered the chance to do so.
SAVVY TIP: The Supreme Court ruling means that you don’t have to have had legal advice or been offered it before you sign the prenup but it does point out that legal advice is desirable.
- Couples should disclose their financial situation. Previously, lawyers advised clients that they should have full disclosure of their finances. That didn’t necessarily mean a detailed financial breakdown to the last penny, but the implication was that each of you had to know what the other had before you could sign the prenup. Today’s judgement changes the emphasis.
SAVVY TIP: The judgement says that there should not be a material lack of disclosure, information or advice, however if you wanted the agreement to carry as much weight as possible, you should have full disclosure.
What does this mean if you already have a prenup?
David Allison of Family Law in Partnership, who’s chairman of Resolution and on SavvyWoman’s panel of experts, says that the ruling doesn’t give couples a list of criteria by which they can check that their existing prenup would be taken into account. “The judgement hasn’t sent out a list that you can tick off tick to show your prenup is fair but it will look at particular circumstances and it does set out situations where a prenup may be unfair.”
The examples when prenup may be unfair include:
- A couple who have few assets when they marry. If the couple have very few assets when they get married but build them up during their marriage, a prenup stated that one person should get very little while the other took the lion’s share would be regarded as being unfair.
SAVVY TIP: The judgement also says that a prenup that excludes property/a business/ other assets that had been built up or bought before the couple married from the divorce process wouldn’t be ‘inherently unfair’ and may be justified.
- If one partner looks after the children. If a couple marry and one partner takes time out of work to look after the children and is left in financial need on divorce, the prenup would be unfair.
SAVVY TIP: The judgement states that a prenup cannot be allowed to overrule requirements that children are reasonably provided for although it may overrule what a court would otherwise decide was ‘fair’ to the husband or wife.
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