More and more couples are choosing to make both pre and post marital type agreements. People wishing to make these types of agreements will often have different reasons for doing so. They may require an agreement because they want to try and protect inherited, family or pre acquired assets for example company shares, a divorce settlement, a compensation payment for medical negligence etc.
Insofar as the lawyer is concerned there are certain aspects of the advice to the client which are of fundamental importance. Initially, it is important to advise a client that certain safeguards are recommended. For example financial disclosure, the need for each party to have independent legal advice, there to be no evidence of undue pressure and whether or not the provision contained within the agreement meets the needs of both parties. It is important that the agreement should contain provision for any children either born or yet to be born. It is also important that clients are aware of the limitations of marital agreements. They are not automatically enforceable in England and Wales as the law stands. They are increasingly being upheld by the Court and there has been a considerable amount of case law involving these types of agreements.
The landmark case is the case of Radmacher v Granatino which was decided in 2010 by the Supreme Court. As a result of this case, it was clearly established that contrary to the previous cases whereby pre nuptial agreements were considered to be against public policy they were now to be given effect so long as they were entered into by both parties freely and with full appreciation of their consequences.
As recently as 2016 there have been two further important cases involving pre nup agreements. In the case of H v H in 2016 where the parties had entered into a pre nuptial agreement and then married and then separated 12 weeks after marriage, the Court found that the pre nuptial agreement had not been entered into at the last minute by parties who had no real idea of what it meant and in this case the pre nuptial agreement was upheld and there was to be no further additional financial provision for the wife in this case. However, in the case of DB v PB in the same year whilst the Court acknowledged that the parties had consensually entered into the pre nup agreements and that there was no fraud, misrepresentation or undue pressure which would set the agreement aside. The Court acknowledged that there was still unfairness and the Court should take the approach of alleviating the unfairness and where assets were available to meet the wife’s needs, in this case, the Court went ahead and made the appropriate orders.
It is important to remember that, in cases, where the marital agreement is challenged the Court will consider whether the parties are to be bound by their agreement or whether it is right and proper for the Courts to review the agreement and make further financial provision to address any unfairness which exists.
Credit to Jonathan Green