Statistics published by the Office for National Statistics in February 2015 showed that 974 civil partnership dissolutions were granted in England and Wales in 2013, an increase of 20% since 2012. With many gay couples having awaited the legalisation of same-sex marriage, Lee Trubshaw, Partner at solicitors Bradin Trubshaw & Kirwan LLP, examines the fors and againsts of pre-nuptial agreements for partners looking to enter into a civil partnership or marriage:
Traditionally pre-nuptial agreements have been associated with the rich and famous and whilst they have been legally binding in most US states and some European countries, they have not historically been enforceable in English law. However, since a landmark ruling by the UK Supreme Court in 2010, there has been a cautious acceptance of pre-nuptial agreements by the courts which has been reinforced by the Law Commission’s recommendation in February 2014 that they should be given full legal force.
Pre-nuptial Agreement – What it Means
A pre-nuptial agreement may also be referred to as a pre-nup or pre-marital arrangement or pre-civil partnership agreement. It is a formal written agreement entered into before marriage or civil partnership that sets out the terms of what will happen to each party’s property and assets in the event that the marriage or union comes to an end. It does not cover child custody or support. Whilst it is advisable to agree arrangements before a union, similar post-nuptial agreements or post-civil partnership contracts may be drawn up once the marriage or partnership has taken place.
The Legal Position
Since 2010, when the Supreme Court upheld a German heiress’s pre-nup to protect her £100 million fortune, the courts will take agreements into account, demonstrating a significant shift in attitude from 20 years ago. Increasingly the courts will consider the provisions of pre- and post-nuptial agreements in financial proceedings when a marriage or partnership breaks down, meaning that the onus is on the partner looking for a better settlement to show that an agreement entered into before or after the marriage or partnership is unfair.
Law Commission Report
In February 2014 the Law Commission published a report called ‘Matrimonial Property Needs and Agreements’ which included a draft Bill to enable married couples and civil partners to make a binding agreement on how property and/or finances should be shared between couples who split up. The Law Commission recommends a change in legislation so that ‘qualifying nuptial agreements’ are enforceable provided that both parties have disclosed all financial information, have received independent legal advice and that agreements have been signed 28 days before a wedding/union. Parliamentary consideration of the ‘Nuptial Agreements Bill’ has presently been deferred until after the General Election.
Why Have a Pre-nuptial Agreement?
Many people feel that pre-nups go against the concept of marriage or civil partnership. Pragmatically viewed though, pre- and post-nuptial agreements are like an insurance policy to protect assets against future claims by a spouse/civil partner, such as future inheritance, or personal interests if you are marrying or entering into a civil partnership for a second time or more. So, for example, if one partner is significantly wealthier than the other, they can try to keep assets out of the matrimonial ‘pot’ to avoid a 50% loss. This is especially significant if the union is short-lived or there are no children as without an agreement the courts can split all assets and property down the middle, each receiving half. Equally, if one partner has debts when entering into a marriage/partnership, a pre-nup can be used to protect the other party from being held legally responsible for prior debts.
How to Make a Pre-nuptial Agreement
Whilst generic pre-nup agreements are available to download on the Internet, an agreement really needs to be tailored to yours and your partner’s specific circumstances. That is why I would always recommend using a specialist solicitor and it is essential that both partners seek independent advice. It is also unwise to rush into a pre-nuptial agreement as it may be deemed by the courts that one party was under pressure, which may mean the agreement will not be enforced by the court. Changes to a pre-nup may be made with the agreement of both parties.
For advice on civil partnerships, same sex marriage, pre-nuptial agreements and other legal matters contact Bradin Trubshaw & Kirwan LLP on 01543 421840 for a consultation or email firstname.lastname@example.org
If you have any legal questions for Lee email us here at email@example.com.