A pre-nuptial (or pre-registration) agreement is a contract between the parties to an intended marriage or civil partnership that seeks to regulate their affairs in the event that their relationship ends.
For the majority, financial arrangements will be the main focus of such agreements, but the parties may also agree in what jurisdiction their divorce or dissolution suit will proceed.
Pre-nuptial agreements are not formally binding in England and Wales. They have been regarded by the court as persuasive and even ‘decisive’ and a pre-nuptial agreement may influence the outcome of an application for a financial remedy, either as part of all the circumstances of the case that the court has a duty to consider, or as conduct it would be inequitable to disregard. Following the Supreme Court decision in Radmacher (formerly Granatino) v Granatino  UKSC 42,  2 FLR 1900, advice may need to be tempered by the significant weight given to the pre-nuptial agreement in that case.
Factors that will be taken into account by the court as to whether such an agreement may be upheld include:
• whether there were circumstances attending the making of the agreement that should detract from the weight that should be accorded to it— parties must enter into a pre-nuptial agreement voluntarily, without undue pressure and be informed of its implications; the question is whether there is any material lack of disclosure, information or advice
• whether there are any foreign elements of the case that enhance the weight that should be accorded to the agreement
• whether the circumstances prevailing at the time the court made its order make it fair or just to depart from the agreement
A nuptial agreement cannot be allowed to prejudice the reasonable requirements of any children of the family, but respect should be given to individual autonomy and to the reasonable desire to make provision for existing property. In the right case a pre-nuptial agreement can have decisive or compelling weight.
These are agreements entered into after marriage or civil partnership. Similar considerations will apply to the making of post-nuptial agreements as apply to pre-nuptial agreements.
Independent legal advice
It was confirmed in Radmacher that whether a party has had the opportunity to take independent legal advice on the terms of a proposed agreement will form part of the considerations as to whether an agreement is ‘fair’. The position was described as ‘Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this’.
It is notable that the husband in Radmacher had not received independent legal advice, but was considered to be fully aware of the implications of the agreement and to have had sufficient information to enable him to enter into the agreement with an understanding of the consequences. Whether the parties have taken independent legal advice will therefore be only one of several factors considered by the court as to the circumstances surrounding the making of the agreement.
The position of the Supreme Court in Radmacher as to disclosure by the parties prior to entering into a marital or civil partnership agreement, and the factors that will be considered as to whether a party had ‘a full appreciation’ of the implications of the agreement was summarised as ‘Sound legal advice is obviously desirable, for this will ensure that a party understands the implications of the agreement, and full disclosure of any assets owned by the other party may be necessary to ensure this.’ and further that: ‘What is important is that each party should have all the information that is material to his or her decision…’.
Case law indicates that disclosure, or a lack of disclosure, will be considered in the context of the circumstances surrounding the signing of the agreement as a whole, including the financial expertise of the parties themselves.
Drafting and formalities
The approach to the drafting and formalities attendant upon a marital or civil partnership agreement will be significant as to whether the agreement will be upheld.
In cases involving links to other jurisdictions, a specialist family lawyer should be instructed in each potential jurisdiction to advise on the need for and effect of a marital or civil partnership agreement in that jurisdiction, and the implications of the parties entering into such an agreement.
Maintenance agreements are contractual agreements made between a couple, either husband and wife, civil partners or unmarried parties, who are the parents of a child or children that provide for maintenance and support of the spouse or civil partner and the child(ren). The terms ‘maintenance agreement’ and ‘separation agreement’ are often used interchangeably in this context. A distinction is sometimes drawn between separation agreements, which set out the parties’ agreement to live apart, and maintenance agreements, which do not.
Maintenance agreements made between parties to a marriage or civil partnership (even where the marriage/civil partnership has been dissolved) and made in writing may be altered by the court under the Matrimonial Causes Act 1973 (MCA 1973) and the Civil Partnership Act 2004 (CPA 2004). An application in relation to a maintenance agreement regarding a child (whether the parties are married or not) may be made under Schedule 1 to the Children Act 1989 (ChA 1989). There are separate provisions in MCA 1973/CPA 2004 relating to applications for the alteration of a maintenance agreement after the death of one of the parties. Time limits apply to the making of such an application. There is also provision in the Inheritance (Provision for Family and Dependants) Act 1975 and ChA 1989 for alteration of certain maintenance agreements.
Family law team