Prenuptial agreements have been common and legally enforceable contracts in the US and in many of the European countries. However, this has not been the case in the UK where the divorcing couples have had to either try and reach agreement through divorce lawyers, or failing that, rely on the Courts and a judge to draw up a fair settlement based on statutory guidelines plus the judge's discretion.
UK has usually considered it against public policy to enforce prenuptial agreements, seeing them as a device to oust the jurisdiction of the courts. However, this is all beginning to change now, at least in England and Wales.
Following a recent decision by the Supreme Court, it appears that pre-nuptial agreements will be given weight and consideration in achieving a divorce settlement. At this stage it is still only a precedent set by the Supreme Court decision, and has not been codified as law. This all depends on the Law Commission which is considering this issue and hope to issue new guidelines and perhaps recommend statutory enactment.
Usefulness of Pre-nuptial Agreements
Until that happens, couples planning to marry or form a civil partnership may rely on the Supreme Court decision and consider drawing up a prenuptial agreement, knowing that if it is drawn up properly then it is likely to be enforceable should the relationship split up for any reason.
True couples just on the brink of getting married and cementing their relationship may not want to think about something that may seem unromantic. Surprisingly though, a recent poll found 70% of British public in favour of prenups and think they should be binding on the couple.
While a pre-nuptial agreement sounds unromantic and maybe a tad commercial, because it is after all a contract, it can also be a very useful instrument for guaranteeing peace of mind and security in knowing that each partner's assets acquired before marriage is safe should the relationship not work out. Perversely prenups may actually decrease people's anxiety about entering relationships and making commitments.
This is particularly true in today's society where many people are marrying later and have therefore been working longer and have acquired substantial assets in their own name. There are more incidents of second marriages, again where there may be wealth and assets that an individual may want to protect and ring fence for children of their earlier marriage.
A prenuptial agreement need not be seen as a romance-killer, but more like a protective mechanism to guard what you have worked hard to achieve. Further, the terms of prenups can be drawn up as generously as you want. It need not be a case of leaving your partner completely unprovided for. It is more a case of achieving fairness in a marriage or civil partnership.
However, in order to ensure that your pre-nuptial agreement is enforceable, it is advisable to use the services of a good and reliable family lawyer. A do-it-yourself agreement may contain legal errors which may make it unenforceable in court and leave you relying on your divorce lawyer. Courts expect prenups to be drawn up in a certain manner and process and include several essential clauses to protect both parties against injustice and duress. Let your family lawyer guide you.
Juhee Rathor - null
