Visas

Pre and Post Nuptial Agreements

(also known as pre / post marriage agreements)

We receive many requests in respect of Pre and Post Nuptial Agreements from clients who are considering marrying or entering into a civil partnership. We do not provide advice in respect of family law matters. The following information has been produced by Daniel Coombes, a partner at Family Law in Partnership. We have successfully referred a number of clients to Daniel who can be contacted on + 44 (0)20 7420 5000 or via email dc@flip.co.uk. The firm's website is www.flip.co.uk.

To understand the implications and effect of pre-nuptial agreements one needs to have a brief understanding of marriage and divorce law in England and Wales.

The basis for Divorce

For a marriage to be dissolved in England and Wales the court must first have jurisdiction to deal with matters (likely if the parties are living here) and the marriage must have existed for at least one year. If a year has not elapsed since the date of marriage, only proceedings for judicial separation can be brought. This note will concentrate on divorce. The information is also relevant for civil partnership although some of the terminology is slightly different.

Financial claims

On divorce, the Court has wide powers to make financial provision for either party and for any children of the family. That provision may include:

• periodical payments (maintenance / alimony);


• payment of lump sum(s);


• adjustment of the ownership of property; and


• sharing any pensions between the parties.

In deciding whether and to what extent to make such provision, the Court has a very wide discretion. It has to consider ‘all the circumstances of the case’ and to take into account a list of factors set out in Section 25 of the Matrimonial Causes Act 1973. These factors include things like the ages of the parties, their needs, the financial resources available, the length of the marriage, the standard of living enjoyed during the marriage and the contributions made by the parties. There are other factors. These factors are not listed in any order of priority and a judge in any case may attach whatever weight he or she feels appropriate to each of them.

In longer marriages, the financial provision ordered by the Court may be significant. England is fast becoming known as the most wife-friendly jurisdiction in the world when it comes to divorce after a long marriage.

The Effect of Pre and Post Nuptial Agreements

Litigating financial claims on divorce through the Court in England and Wales is not only expensive but pretty unpredictable given the very wide discretion afforded to the judge. Many people want to remove or limit that exposure to risk and try to achieve a better degree of certainty – by entering into a pre or post nuptial agreement.

Pre-Nuptial Agreements

In short, pre-nuptial agreements are not currently enforceable in England and Wales but they can be influential, sometimes decisively so. There is also evidence that the tides are changing - so they may become enforceable in the future.

Traditionally, the courts of England and Wales ignored pre-nuptial agreements on the basis that they were said to undermine the institution of marriage - as they contemplated a future separation / divorce. In recent years, however, the Courts have paid increasing attention to the terms of these agreements in determining financial provision upon divorce.

One of the most important recent cases was K-v-K in 2002. In this case, the Judge asked himself a series of questions to help him determine the extent to which the terms of a pre-nuptial agreement should be binding or influential as against the wife (she was held almost entirely to what had been agreed and recorded in the pre-nuptial agreement, save to the extent that the Court did not feel the provision met her needs).

There was another a high profile case reported in 2007 (Crossley), in which the Court of Appeal rejected Mrs Crossley’s appeal against an order which required her to show why she should not be held to the terms of an pre-nuptial agreement.

In both of these cases the agreements were broadly fair; i.e. they met both parties’ needs. The couples had also had independent advice and financial disclosure had been given.

In 2009 the Court of Appeal heard another important case concerning pre-nuptial agreements - the case of Granatino. In this case, the wife (who was German) came from a very wealthy family. The husband was French. They settled in England and had entered into a pre-nuptial agreement shortly before they married. When they divorced, the first Court reduced the award that might otherwise have been paid by the wife to the husband, but not by much. The wife appealed and she was successful in that appeal.

The Court of Appeal concluded that pre-nuptial agreements were one and the same time both unenforceable and invalid as being against public policy and one of the circumstances of the case to be taken into account - and possibly decisively. In this particular case, the Court felt the agreement should be given decisive weight and the husband’s award was significantly reduced.

While pre-nuptial agreements are technically unenforceable, there is considerable impetus for change within the profession and recommendations have been made by various influential groups for a change in the law to allow pre-nuptial agreements to become enforceable. It is possible that legislation will be enacted at some point in the future making pre-nuptial agreements enforceable.

In the meantime, to increase the chances of a pre-nuptial agreement being given as much weight as possible, it is important that the agreement is well drafted and entered into properly. Advice from specialist family solicitors should be sought.

Post Nuptial Agreements

These are less well known but equally (if not more) important. At the end of 2008 there was another important case in this area of law - reported as MacLeod v MacLeod, which arose out of proceedings in the Isle of Man. In this case the couple entered into a pre-nuptial agreement and then later, some years after they married, a separate ‘post-nuptial’ agreement. The post-nuptial agreement made better provision than the pre-nuptial agreement, but less than would be regarded as reasonable in terms of English law.

The Court hearing the case did not alter the previously existing position concerning pre-nuptial agreements - it said that it could not reverse the longstanding rule that they were contrary to public policy and therefore contractually unenforceable. However, the Court concluded that post-nuptial agreements were very different and could be enforceable. The court does however retain the power to vary such agreements if there has been a change in the circumstances since the agreement was made which would make the financial arrangements manifestly unjust, or if the agreement does not contain proper financial arrangements for a child of the family.

This is a significant development and parties should therefore consider whether to enter into a post nuptial agreement – possibly in addition to a pre-nuptial agreement, but even where they married without one. Again, specialist advice should be sought.

Dissolution Abroad

The above assumes that any divorce will take place in England and Wales. If in fact the couple intend to live in another jurisdiction (even if for a fixed period) it is essential to get advice from a specialist lawyer in that jurisdiction to see what weight (if any) a pre-nuptial agreement will have there. Although pre-nuptial agreements may purport to fix jurisdiction in England and Wales or to be governed by English law, those provisions are often unenforceable where the couple are living elsewhere. It is often desirable to enter into ‘mirror’ agreements in the other jurisdiction (reflecting the terms of the English agreement).