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Family Law

Family Agreements

Prenuptial Agreements

Frightened of commitment? Is a Prenuptial Agreement the answer?

Let’s face it, it’s hardly romantic, but in addition to ordering the button holes and working out on which table you can sit Great Aunt Beatrice, sitting down with your partner to thrash out who gets what in the event your marriage fails is an increasingly popular part of wedding preparations.

Prenuptial Agreements had their origins with the rich and famous – anxious to protect their multi millions from gold-diggers – but are now a common pre-marriage consideration even for us mere mortals.

But are Prenuptial Agreements worth the paper they’re written on?

Are Prenuptial Agreements enforceable?
Well, actually, not really...

Prenuptial or Premarital Agreements are, as yet, not enforceable in the English Courts. It is for the Court to decide how assets should be divided between parties in the event of a divorce or separation.

The English Law is unusual from this point of view as many other countries including America, Australia and New Zealand and many European countries do regard Prenuptial Agreements as binding.

So if we sign a Prenuptial Agreement in the States, it will be enforceable, right?
Yes, if you get divorced in the States. But if a Prenuptial Agreement is entered into abroad and then you get divorced in England, the English Courts will still not be bound by the agreement.

So basically, there’s no point?
Well, yes and no…The English Courts have begun to take some notice of Prenuptial Agreements. Whilst a Judge will not be bound by such agreements, s/he may take it into account when deciding any financial application.

In recent cases Judges seem to have been taking more notice of Prenuptial Agreements. But in these cases the Judges have not followed the provisions of the Prenuptial Agreements precisely.

For example, where the Prenuptial Agreement has limited the money a wife is entitled to following a divorce, Judges have awarded the wife more than the sum provided in the Agreement, but less than the wife might have received if there had been no agreement.

So if we decide to do one, what kinds of things should we include?

Prenuptial Agreements should be tailored to deal with each particular couple, and each of you should always seek the advice of a specialist Family Law solicitor at Nationwide Solicitors.

Are Family Agreements Enforceable?

The law, it is therefore submitted, cannot have intended that a married person should be in a worse position than any other individual who makes a contract merely because, in the case of a married person, they have the additional layer of security in terms of enforcement but only where there is a court order. It seems unlikely that the law would have placed the spouse of a bankrupt who compromises ancillary relief proceedings or whose spouse dies before court order,in a better position than the spouse in a solvent marriage or one in a marriage that is not terminated by death. There is no discernable logic in such a proposition.

In passing, it may be noted that Matrimonial Causes Act 1973, s 34 provides that maintenance agreements, unless 'unenforceable for any other reason [shall] ... be binding on the parties to the agreement' (s 34(1)(b)). A maintenance agreement is 'any agreement in writing ... containing financial arrangements' (s 34(2)). The court can make an order that 'alters' the agreement (s 35(2)), thereby first having impliedly to find the agreement binding; and if it is binding, why would it not then be enforceable? The argument comes in a full circle.

It is not easily conceivable that the law would intend that a family case resolved by agreement between unmarried parents would give the unmarried parent an enforceable contract where a married parent would have no such protection in contract law. A childless couple can certainly set up an enforceable agreement. If they have children, an agreement as to periodical payments is permitted (Child Support Act 1991, s 9(2)) and such agreement will only be void if it seeks to exclude operation of the Child Support Act 1991 (s 9(4)); and capital agreements can be made and varied by court order (Children Act 1989, s 15 and Sch 1, para 10).

Finally, it will be recalled that substantial parts of ancillary relief orders are not, in law, part of the order (for example agreements or 'undertakings' to repay a mortgage or set up a life insurance policy): they are set out in a preamble to the order because the court has no power under Matrimonial Causes Act 1973 to make such 'orders'; and they are not therefore enforceable under the matrimonial jurisdiction. It would be truly surprising if these agreements, where part of the settlement of an ancillary relief case, could be enforced but the balance of the agreement (because covered by Matrimonial Causes Act 1973, ss 21-24D) could not be in the absence of a court order.

If you would like to obtain confidential legal advice on any matrimonial matter then please contact our family law specialist solicitors. So, if you have any questions or would like our help with counselling or mediation conciliation please do not hesitate to contact us on 020 8983 8944 or by email on info@nwsolicitors.com.

Family Law

Family Agreements

Prenuptial Agreements

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