Pre-Nuptial Agreements: Bargaining in the Shadow of Love

6 March 2014

Last week, the Law Commission published its recommendations on the issue of 'qualifying nuptial agreements' (meaning pre-nuptial and postnuptial agreements).

In summary, the proposals recommend the introduction of ‘qualifying nuptial agreements’, to protect a party’s assets. This would ultimately mean that these contracts would be enforceable providing they respect certain checks and balances, which include the following:-

  • meeting the financial needs of both parties and their children;
  • full disclosure of assets and debts must have been made;
  • both parties must have taken independent legal advice; and
  • agreements must be signed 28 days in advance of the marriage/civil partnership ceremony.

As Lauren’s blog, The legal position of prenups and postnups in England – is it all about to change?, last week mentioned, the Law Commission’s recommendations are just that…recommendations.  They are not capable of changing the law and, as it stands, pre-nuptial agreements are not yet binding. They cannot prevent the Court from deciding whether such agreements should be upheld and, to do so, would require a change in the law.

Pre-nuptial agreements are, however, attracting more attention and becoming more popular than ever before. Since the well-reported case of Granatino v Radmacher and now, with the Law Commission’s recommendations, there appears no sign of this changing climate losing pace. 

The Court’s attitude to pre-nuptial agreements is also changing.  The recent case of SA v PA (Pre-marital agreement: Compensation) 2014 is just one such example, in which the wife, attempted to challenge the circumstances surrounding the signing of the pre-nuptial agreement. She failed in her challenge and the Judge held that she and her husband intended to be bound by the agreement, therefore, upholding the aspects of the agreement which dealt with asset (capital) distribution, despite their long 19 year marriage.

With these current and anticipated changes to the validity of nuptial agreements in England & Wales, it is really important that the financially weaker party in a relationship (that is, empirically speaking, most often the female) considers the position very carefully before signing on the dotted line. At a time when a future spouse may be surrounded by excitement, stress, and hope for what the future holds, this may be easier said than done.

With that in mind, we’ll be looking at whether pre-nuptial agreements are unfair to women in the context of the Law Commission’s report in our next blog.

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