What is a prenuptial agreement?
A prenuptial agreement is a written agreement that is created between two partners before a marriage takes place. It aims to record the parties’ intentions about what they regard to be a fair division of assets in divorce. Such agreements are not binding on the family court in financial remedy proceedings. This is because the court retains a broad discretion under section 25 of the Matrimonial Causes Act 1973 to make an order that it regards as fair. The agreements are, however, considered by the court under section 25(2)(g) of the Act, which states that the court must consider the parties’ conduct if it would be inequitable to disregard it.
In Radmacher (formerly Granatino) v. Granatino [2010] UKSC 42, the Supreme Court gave the following guidance on separation agreements:
1) Although separation agreements do not override the powers of the court under section 25, such agreements do nonetheless carry considerable weight.
2) The court’s first concern will be to look for clear evidence that the parties intended to enter into an agreement that would govern their financial positions on divorce and that they understood the legal consequences of what they had agreed.
3) If the parties did intend to enter into such an agreement, then the court should ask whether there were any vitiating factors which undermined the agreement, such as fraud, duress, or misrepresentation, to the point where the agreement was a voidable contract. If there were such vitiating factors, then the agreement should be ignored.
4) If there were no vitiating factors strictly, then the court should nonetheless look at whether one party took advantage of another, for example by failing to disclose all their assets at the point of agreement.
5) All these considerations were relevant to how much weight the court should give to the agreement.
Thus, prenuptial agreements can be considered by the court, but only after a careful examination of the circumstances in which they were created.
The benefits of having a prenuptial agreement
Prenuptial agreements can be beneficial if done properly. Some of the key benefits are as follows:
- Recording a clear intention on division of assets – This minimises disputes and confusion during divorce proceedings.
- Simplifying the separation and divorce process – A prenuptial agreement can streamline the family court process and reduce the costs on both sides.
- Can protect a partner’s assets if they already have significant wealth – Partners who have significant wealth can use a prenuptial agreement to safeguard their wealth and define how it should be handled in the event of divorce.
How can Demstone Chambers help with a prenuptial agreement?
Demstone Chambers are a direct access barristers chambers specialising in family law, including but not limited to divorce, financial remedy proceedings, child contact disputes, and domestic abuse allegations. We are based in Milton Keynes but can help clients in London, Birmingham, and surrounding areas. Because we are a direct access barristers chambers, we can bring our expertise to members of the public, without the requirement of a solicitor. Contact us if you need help with a family law matter.