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 automatically binding under English law. However the courts are placing more and more weight on the existence of 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.
The Law Commission recommended that for pre nups to be upheld, the following needs to happen:
- both people provide disclosure of their financial situation before the agreement is signed;
- the agreement will not be binding if there undue pressure;
- you should both take separate legal advice;
- and most importantly, the agreement must be “fair”. The Law Commission recommended further research into what is meant by” fair”.
This has not been incorporated into law, although it has been considered and approved by the courts including the Supreme Court.
The law is evolving which highlights the need for expert advice. It is important 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.
