For many, the idea of entering into a marriage with a contract that deals with what happens in the event of the marriage failing seems to question their commitment to each other. However, they are useful for marriages between couples where at least one party has substantial wealth.
Although pre-nuptial agreements are not the answer to all divorce problems, there is consensus that for short, child-free marriages, they do have a distinct benefit.
Although the court will always look to the statutory provisions of the Matrimonial Causes Act 1973 to make its decisions, in the few cases that have been reported on which involve pre-nuptial agreements, it is clear that the agreement will be looked at as one of the circumstances that the court will take into account. A pre-nuptial agreement has been described as ‘a material consideration'.
In deciding whether to take the agreement into account, the court will consider whether the agreement was truthful as to all the assets held by each party, and have advised that the agreement should be made at least 21 days before the marriage, to ensure that no party felt unduly pressured to sign it. Both parties should also have taken legal advice prior to signing the agreement.
As the amount of divorces in which pre-marital agreements have been made increases, it appears that the court are becoming more and more inclined to give them serious thought. We would advise clients with substantial assets to seek legal advice to ensure that, should their marriage unfortunately break down, they have an agreement that, according to recent case law, the court will take into account when deciding a financial package.