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. To try and provide some clarity, the government asked the Law Commission to investigate and make recommendations about whether they should be made legally binding. Although the recommendations (published in March 2014) are not yet legally binding, they are a clear sign of where the law is heading.
The Law Commission recommended the following:
- both people provide disclosure of their financial situation before the agreement is signed;
- the agreement will not be binding if there undue pressure;
- you shoudl both take separate legal advice;
- and most imprtantly, the agreement must be “fair”. The Law Commission recommended further research into what is meant by” fair”.
The law is evolving which highlights the need for expert advice. It is imprtant they are prepared carefully, and updated regularly. We at bbl family law have the experience and skills needed to advise on pre and post nuptial agreements.