If you are considering getting married or entering into a civil partnership and wish to protect yourself financially you should enter into a pre-nuptial agreement.
A pre-nuptial agreement confirms the agreement reached between you and your future spouse or civil partner regarding what should happen with your finances in the unfortunate event that the relationship breaks down.
Pre-nuptial agreements are not yet legally binding, however the courts do take them into consideration and appear to be giving increasing weight to them. The Supreme Court has recently stated in the case of Radmacher “The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”
A court will take a pre- nuptial agreement into account providing there have been no significant events which are not covered within the agreement, such as the birth of a child of the family or serious illness and the following criteria are met:
1) Both parties have either obtained independent legal advice or been given the opportunity to do so.
2) Both parties have provided full and frank financial disclosure of their respective financial positions.
3) There has not been any pressure applied to either party to enter into the pre-nuptial agreement.
NB: To ensure no pressure is considered to have been exerted on either party the pre-nuptial agreement must be entered into comfortably in advance of the marriage or civil partnership.
If you and your spouse/civil partner separate the court will consider all the circumstances of the case in deciding what is a fair settlement and courts are now considering a pre-nuptial agreement as part of these circumstances. Even if the court does not uphold the terms of the pre-nuptial agreement the terms of the agreement may still prove a significant factor in its decision and can provide a starting point for negotiations. It is therefore far better to have such an agreement in place, rather than nothing at all.