Prenuptial Agreements

By Ian Cox

A prenuptial agreement (also referred to as a premarital agreement) is a formal written agreement entered into by a couple before marriage.  It's purpose is to record the parties' intentions as to the division of assets in the event that the marriage breaks down.

Such an agreement might be suitable where either or both parties to the proposed marriage already own property.  For this purpose property is defined not just houses or flats but any other substantial holdings such as Bank Accounts, Pensions or Life Policies.  The agreement could state that all property owned by each party prior to the agreement shall remain the property of that party in the event of separation and sets out what should happen to property acquired after the date of the agreement or marriage. 

The courts are not obliged to enforce such agreements although they now seem to be moving towards some form of acceptance of them.  The recent case of Radmacher -v- Granatino illustrates this.  Where the terms of the agreement seem to favour one party rather than the other, it is important for both parties to obtain independent legal advice to avoid a claim by one part that he/she was forced to sign it accepting unfair terms. The agreement could also state that neither party shall make any financial claim upon the other in the event of separation or divorce.

It is recommended that the agreement should be signed no less than 21 days before the day of the marriage since otherwise this may suggest an element of pressure or duress being imposed upon one party.

Such agreements may be also applicable to same sex couples looking for an agreement prior to entering into a civil partnership.