Our family lawyers are often asked whether there is a way of protecting pre-marital wealth and indeed, whether pre-nuptial agreements are legally binding.
Under the current law, couples can make pre-nuptial agreements to protect their wealth, in the event of a divorce. However, whilst the courts may follow these agreements, they are not strictly legally binding.
In 2013, the Law Society released a report on “Matrimonial Property Needs and Agreements”. The report makes recommendations which should make it easier for couples to manage their finances on divorce. One of the recommendations relates to ‘qualifying nuptial agreements’, to allow couples to decide how their assets should be shared if they separate.
If the recommendations were ever enacted and made law, it would enable couples to draft legally binding agreements regarding financial matters on separation. Such agreements would be classed as ‘qualifying nuptial agreements’ or ‘QNA’s’. A ’qualifying nuptial agreement’ would need to satisfy certain criteria as follows:-
- The agreement must meet the usual contractual criteria and not involve any fraud, duress or misrepresentation;
- The agreement must be signed no less than 28 days before the wedding and must contain a statement that the couple understand that the agreement is a qualifying nuptial agreement, that will partially remove the court’s discretion to make financial orders;
- Both parties must have received independent legal advice;
- Both parties should have exchanged full and frank financial disclosure; and
- The agreement must also make provision for any children or any expected children.
The change would match the practice in other countries where pre-nuptial agreements relating to ownership of property are legally binding.
As it stands, even though pre-nuptial agreements are not strictly legally binding in the UK, if they are drafted to comply with the above criteria, there is a good chance that they can be relied on in the event of a divorce. It is also important that the agreement is not wholly unfair and that there is provision for a regular review and revision of the terms after the marriage.
Whilst pre-nuptial agreements are already popular with wealthy couples with a high net worth, if ‘qualifying nuptial agreements’ are introduced, there may be an increase in these agreements for couples of more modest means.
The proposed changes are unlikely to become law until the next general election but Myerson LLP will endeavour to keep readers updated in this respect.
The specialist solicitors at Myerson have a wealth of experience in drafting and implementing pre-nuptial agreements. If you require legal advice on pre-nuptial agreements or any other area of family law, please call 0161 941 4000.