Pre-Nuptial Agreements - should we now take them seriously?

A recent decision by the Court of Appeal has held that a husband should be bound by the terms of a Pre-Nuptial Agreement that he entered into with his wife. Previously, Pre-Nuptial Agreements have been of little significance in England and Wales . They were deemed to undermine the concept of marriage as a lifetime union and treated as contrary to public policy. For this reason, they were not enforceable in divorce proceedings. However, there has been much debate about such Agreements over the years and this case suggests a change in Judicial thinking.

In this case, the French husband completed a Pre-Nuptial Agreement with his German wife in Germany . Such Agreements are enforceable in both France and Germany but this couple married in England .

The Court of Appeal decided that the wife, one of Germany 's richest women, was able to bring the terms of a Pre-Nuptial Agreememnt into account in the divorce proceedings following the break down of their marriage.

Lord Justice Thorpe, one of the Appeal Judges, said that he believed it had become, "increasingly unrealistic" for Courts to disregard Pre-Nuptial Agreements. He continued, "(The current law) does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement in an age where marriage is not generally regarded as a sacrament and divorce is a statistical commonplace." He went on to state that a "carefully fashioned contract" should be an alternative to Court proceedings and the cost and stress and anxiety that such proceedings bring.

It is anticipated that the husband will seek permission to bring an Appeal to the House of Lords but this decision represents a significant shift in the law by three of the most respected Judges in this field. Many regard this judgment as one which has enabled ancillary relief law in this country to catch up with other nations who have already taken Pre-Nuptial Agreements on board.

At this early stage, it is important to realise that such decisions will not happen in every case and issues over Pre-Nuptial Agreements will remain unclear until Parliament reviews the law.

Marie Whittaker, Partner at Clough & Willis Solicitors says, "It is recommended that couples who intend to marry should reflect on their situation and consider entering into a Pre-Nuptial Agreement. Such Agreements are particularly useful in cases where one party to the marriage has more capital and income than the other or has received an inheritance. They are also useful in cases for people getting married who have been married before. The family unit can be very complex today and I would certainly recommend Pre-Nuptial Agreements to business owners and directors, who also need to protect their business and the people employed within it.”

Clough & Willis are able to advise clients on all aspects of Pre-Nuptial Agreements and are able to draft contracts to suit individual requirements. When balanced against the potential costs of legal proceedings in the event of a marriage break down, the costs of putting them in place can represent money well spent.

For further information, contact Marie Whitaker, marie.whittaker@clough-willis.co.uk or telephone our specialist Family Law Department direct on 0161 761 4730.