Pre-nuptial agreements – no bar to a happy marriage

Pre-nuptial agreements are frequently linked with celebrities – but they are not just for the rich and famous. Research shows that four out of ten divorcees believe a prenuptial agreement could have paved the way for a fairer, more amicable, less costly and faster settlement.

Pre-nuptial agreements are not currently legally enforceable in England and Wales. However, in the event of a marriage or civil partnership breakdown, the court will nearly always consider them as one of the relevant factors when dealing with a settlement, provided certain guidelines have been followed.

Both parties must prove they had legal advice, made full financial disclosure and were under no duress when entering into the agreement. Pre-nuptial agreements should also be signed at least 21 days before the marriage takes place, to avoid suggestions a partner was pressured into an agreement on the eve of their wedding.

It may sound like a lot of effort but there is a groundswell of support among family lawyers for pre-nuptial agreements to become legally enforceable – except where there is a risk of `significant injustice’.

Despite pre-nuptial agreements growing in popularity, they are underpinned by very little case law as it is felt only a small percentage of couples are going into them, amid fears that they may not be upheld. In the few cases that have reached the courts, judges are willing to enforce at least some of the terms – as long as they are deemed fair.

Although the Government considered making pre-nuptial agreements enforceable ten years ago, to help cut the cost of financial proceedings, the proposal was never pursued.

There is growing opinion that prenuptial agreements could become enforceable within the next five years, with more and more judges taking them into account and willing to give weight to them.

The recent case of so-called serial divorcee Susan Crossley has highlighted the issue. She was believed to be worth £18 million after three previous separations from wealthy men, which prompted the Judge to scrutinise her prenuptial agreement. Mrs Crossley had challenged its contents – despite a marriage of a little over a year – amid claims she was not aware of the extent of her husband’s assets in offshore accounts. Mrs Crossley finally opted to drop her case on the eve of a High Court hearing. It was later regarded as a benchmark after being singled out by Lord Justice Thorpe, who described it as a ‘paradigm case’ and of ‘magnetic importance’ for pre-nuptial agreements.

The case is now believed to be the nearest we are likely to get to a definitive ruling while the law remains as it is.