Are pre-nuptial agreements relevant to the current divorce process? Where do you stand if you agreed to a pre nuptial agreement before your marriage and subsequent divorce?
Pre-nuptial agreements may now be taken into consideration by the courts but there is no absolute requirement to do so and certainly they do not impose a contractural obligation on either party. In plain English a pre-nup can be a good idea but it might well stand up in law.
Pre-nuptial agreements and divorce
The lives of the rich and famous in celebrity culture have familiarised most of us with the notion of the arrangement made before marriage known as the pre-nuptial agreement which seeks to help sort out the finance after divorce in the event of a marriage breakdown.
For the average person in the UK a pre-nup can have little relevance when plans are being made to enter into a union that one would hope will last a trifle longer than the average Hollywood marriage, some of which appear to survive barely long enough for the ink to dry on the paper on which the agreement has been written.
Why draw up a pre-nuptial agreement?
Before contemplating a pre-nup it is essential that you consult with a qualified financial expert to make sure that you have the best advice before drawing up the agreement. A pre-nup is usually entered into when one of the prospective marriage partners wishes to protect previously acquired assets in the event of divorce. However, the authority of the courts in England and Wales is paramount when dealing with divorce finances.
No pre-nuptial agreement will be upheld if a court thinks that it is being used to circumvent its normal jurisdiction or if the needs of any children involved would be compromised by trying to uphold the validity of an agreement made before marriage.
The tradition of the English (and Welsh) divorce courts is to take into account all the assets of a marriage at the time of getting a divorce and to distribute them as they see fit in accordance with the principles laid down by laws passed in Parliament.
Seeing into the future..or not
Pre-nuptial agreements cannot possibly forsee everything that may happen during the life of even a quite short lived marriage and may, fairly quickly, become irrelevant to a couple's circumstances. Furthermore, once children are involved their needs take priority even if the marriage has not been long lived.
Additionally, the courts in England and Wales do not take kindly to having their powers restricted by such agreements and will not hesitate to ignore them if they consider it they think it right to do so.
Save time and money. The paternalistic nature of divorce law in England and Wales means that only on rare occasions do the courts uphold agreements made before marriage, unlike courts in the US which allow a couple in a divorce to have a much greater degree of control over their financial affairs. However, this is changing and legally enforceable agreements are getting closer.