Pre Nuptial and Post Nuptial Agreements

A pre nuptial agreement is a contract signed before a marriage, setting out what should happen in the event the marriage fails.  They can provide certainty and security, and we are seeing more and more enquiries about them.  A post nuptial agreement is the same type of contract, but signed after the marriage.
Historically the courts have refused to recognise or uphold pre-nuptial agreements, and they are still not binding under English law.  However the courts are placing more and more weight on the existence of a pre nups.  The Government has asked the law Commission to report on pre-nuptial agreements and their report is due in 2012.  This is likely to lead to a new statute being introduced and it is expected that the Law Commission's findings will be in favour of pre-nups. 
As long ago as 1998, a Government consultation paper suggested pre-nups could be binding as long as the following criteria were met (this consultation paper never became law, but it is a useful indication of how the court should approach pre nups):

• disclosure of wealth;
• undue pressure;
• separate legal advice;
• whether since the agreement there had been  periodic review of the agreement;
• whether there were children  before or after the agreement.

More recently, the Supreme Court upheld a pre nuptial agreement in a case where some of the above factors were not met; this sends a clear sign that the courts will uphold pre nups if they are "fair".  The law is evolving which highlights the need for expert advice.  We at bbl family law have the experience and skills needed to advise on pre and post nuptial agreements.