Pre-Marital Agreements: not just for the rich and famous!

When a Hollywood icon decides to marry, no one is at all surprised to hear that a pre-marital agreement is being drawn up by lawyers prior to the big day.  Similarly, in some European countries, it is a matter of routine for people from all walks of life to enter into pre-marital agreements.

Although recognised in some countries, pre-marital agreements are not presently binding and enforceable in the UK.  The Government, keen to promote marriage, has historically viewed such agreements as contrary to public policy, on the basis that they focus on what would happen should the marriage breakdown. 

However, certain legal experts and interested organisations, including Resolution (the campaigning body representing family lawyers interests and pressing for reform where required) are pressing the view that pre-marital agreements can promote stability, giving the parties more choice, encouraging them to take responsibility for their own lives in addressing financial issues before their marriage and potentially reducing the risk and cost of litigation should a divorce eventually happen.  The Government’s consultation document “Supporting Families” seems to suggest a change of attitude now however and although the document did not suggest that pre-marital agreements should become mandatory, they did recommend that they should be allowed if certain safeguards had been followed.

According to research, almost half of those questioned in this country would now like to see pre-marital agreements become legally binding.  Along with organising the venue, the caterers and the honeymoon, a visit to the lawyers could become part and parcel of planning the wedding arrangements in the future!  With the high number of second marriages in the UK nowadays and given the multi-cultural and international community in which we now live, it is likely there will be an increase in demands in the future for pre-marital agreements to be held as binding.

So for those contemplating the possibility of a pre-marital agreement, what is the best advice we family lawyers can give at present?

Firstly, such agreements should not be rushed. There needs to be careful planning, negotiation and advice.  Of those cases where pre-marital contracts have been upheld by the courts, the key element has been “fairness”.

Pre-marital agreements should not generally be made less than 21 days before the date of the marriage (so as to allow time for consideration without undue pressure). Both parties should have provided full disclosure of their financial circumstances and should have received legal advice as to the implications of the terms that they wish to record.  Next, there should have been no duress by one party against the other and finally any such agreement should build in provision for regular reviews, particular in the event that a child is born and perhaps, for example, in the event of redundancy or one party suffering permanent disability.

If there is no apparent injustice to either party and no unforeseen circumstances intervening such that it would make it unfair to hold one party to it, it seems likely that the Court would find favour with the agreement.

If divorcing couples cannot agree upon the terms of their financial settlement on divorce, then the Court will be asked to adjudicate.  At the moment, the Court is asked to consider “all the circumstances of the case”.  Pre-marital agreements may most certainly be treated as one of those circumstances or (alternatively, on the cases so far tested) “conduct that it would be unfair for the Court to ignore”.  Whilst the court will bear in mind any existing Pre-Marital agreement, there is no guarantee it will outweigh other factors  that the court will take into account, particularly where there are children of the marriage.

But what if the wedding is imminent or has already taken place?  Whilst it is possible to enter into a post marital agreement, such agreements do not generally hold as much weight as pre-marital agreements and, in any event, their intention is to regulate the financial affairs of the married couple on and during their marriage.  A post marital agreement does not  generally contemplate the dissolution of the marriage.

Pre-marital agreements may still be worthwhile considering even now therefore and anyone wishing to consider this option should consult the specialist Family Law department at their solicitors’ office.

Ann Barker, Head of Family Law
November 2005