Wedding season is in full swing but in the rush to finalise last minute preparations many people overlook the fact that proper time and thought may need to be given to any nuptial agreements that the parties may wish to enter into. Best practice informed by Guidance from the Law Commission now dictates that these agreements should be signed in excess of 28 days prior to any ceremony. The reasons are obvious: to enable enough time and space for parties to consider the legal ramifications of these documents before singing them, and to avoid being unduly pressurised into signing them by the impending wedding day on the horizon.
A landmark case in 2010 changed the court’s approach to the enforceability of these agreements, and while they are still not automatically legally binding, they now can, in certain circumstances, be given decisive weight and upheld even where the court may have made more generous provision. The court will give effect to a nuptial agreement if it was 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 them to it. What this usually means is provided the agreement meets a party’s needs (and those of any children) and there are no ‘vitiating factors’ such as mistake, duress or fraud, the court will give it effect.
The increased legal recognition of these agreements has given rise to a consequent increase in people seeking to use them to attempt to regulate the consequences of marital breakdown, buy themselves an element of predictability and protect assets they may have built up alone prior to their marriage. But these agreements take time to negotiate and consider, legal advice needs to be taken some disclosure of financial circumstances needs to be made so that any future court is assured that parties had a full appreciation of its implications.
These documents mean one party is going to be giving up rights to more generous provision via the courts than they will be getting in the agreement and that should not be undertaken lightly. Often women who have children and so give up careers to take on caring responsibilities will have the most to lose from these agreements, which ultimately permit a prospective spouse to contract out of a “sharing claim” in preference to a more “needs-based” claim. Whether a prenup guarantees more certainty upon marital breakdown is arguable; if a dispute arises about whether it should be upheld the proceedings can be just as long and drawn out. But where the marriage isn’t long and there is no children the application of these prenups does seem more straightforward.
Rhiannon Lloyd is a barrister at 4PB