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Matrimonial law expert Samantha Jago looks at
the growing trend towards Pre-Nuptial Agreements.
Many people wrongly believe that the Pre-Nuptial Agreement is the Recently I was instructed in a case where a Pre-Nuptial Agreement
domain of the super rich. existed. Both parties had complied with the criteria above,
although there were no children. The wife subsequently tried to
On the contrary, according to the Law Gazette, 77% of solicitors
argue that the agreement should be set aside on the basis she
surveyed earlier this year stated that they had seen a sharp rise in the
had been put under pressure to sign it. This claim failed as a paper
number of people requesting a Pre-Nup.
trail clearly existed which discredited her argument.
So why has there been such a recent surge and what exactly is a Pre-
It is therefore clear that the Court will take into account the
Nuptial Agreement?
existence of a Pre-Nuptial Agreement when appropriate.
Well, it is a contract entered into by a couple prior to their marriage
and determines who will get what in the event of their marriage
If you are not married and are contemplating living with your
breaking down. The agreement can be drafted with flexibility to meet
partner then you might want to enter into a Cohabitation
each case’s individual needs and personal circumstances.
Agreement to protect your assets.
As is well publicised, Pre-Nuptial Agreements are not legally binding
This serves the same purpose as a Pre-Nuptial Agreement in that it
and hence many question their value. In recent high profile divorce
formally records what will happen to your assets if your relationship
cases where no Pre-Nup existed, such as the Paul McCartney case,
were to come to an end and the same criteria should be followed
the wealthy party has paid a significant sum of money to the ex-
to give it the best chance of success.
spouse despite the briefness of the marriage.
If you are considering entering into a Civil Partnership (the union of
Following recent decisions in cases where Pre-Nuptial Agreements
same sex couples), then you might wish to protect your assets by
have been put to the test, it is clear that the Court is attaching
entering into a Pre-Civil Partnership Agreement, following the
increasing importance to the terms of these Agreements.
same criteria.
In addition, the Law Commission announced on 11 June 2008 in their
If you have married, then all is not lost and you can seek to protect
10th programme of reform, that they are to begin a project on the
your assets by entering into a Post-Nuptial Agreement.
use of Pre-Nuptial agreements in marriage and Civil Partnerships. The
project will begin in September 2009 and a draft Bill is to be ready by
Many are concerned that entering into such an agreement is
September 2012. The Law Commission is concerned that some
unromantic or might undermine the relationship from the outset. But
couples may not be marrying or entering into civil partnerships
a properly drafted, straight-forward agreement can protect both
because Pre-Nuptial Agreements are not automatically binding and
parties and actually minimise future difficulties in the relationship.
hence they might not be able to protect their assets. It will be
interesting to see what the Law Commission’s draft Bill will propose.
Legal advice should be sought by anyone considering entering into
such an agreement as a court is very unlikely to uphold the terms
However, September 2012 is a long way off and in the interim, to give
of a home-made effort.
a Pre-Nuptial Agreement the best chance of success, a number of
factors should be complied with:
Such an agreement should be considered by anyone who has
acquired assets prior to their relationship and wishes to protect
• both parties should have independent legal advice;
• both parties should fully and frankly disclose to one another their
financial means;
• the agreement should be entered into well in advance of the
Samantha Jago, howell jones solicitors, Guildford
wedding (normally a minimum of 21 days before the marriage);
• provision has been made for any children.
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