Family Law Archives - MLP Law

Pre/Post Nuptial Agreements: Are they legally binding?

This article will consider and explore the law relating to nuptial agreements, advantages of having one and how the Courts are approaching them.

What is a nuptial agreement?

A nuptial agreement is a form of agreement entered into between couples anticipating marrying (pre-nuptial) or who have already married (post-nuptial).

It sets out what should happen to the family finances if the marriage breaks down. For example, it may include a clause ringfencing either party’s assets accrued prior to the relationship.

It will often include clauses about what property is to be kept separate and what property will be considered as joint.

It may also include provision on jurisdiction and consider what should happen in the event of the untimely death of one party.

What is the law?

Nuptial agreements are not technically legal binding in England & Wales.

However, over the last 13-years, the Higher Courts in England & Wales have increasingly recognised that such agreements should be given weight. In some cases, they have can have decisive and very compelling weight, meaning that parties will be held to the terms of the same.

In the Supreme Court decision of Radmacher the Court upheld the provisions of a nuptial agreement and took the time to set out in what circumstances nuptial agreement should be given weight as follows: –

  • Parties must enter the agreement voluntarily, without pressure and be informed of its implications.
  • Whether foreign elements should enhance the weight of the agreement.
  • Whether the circumstances at the time the Court considers the matter make it fair or just to depart from the agreement. In other words, if the agreement is fair the Court should not look behind the agreement.

A nuptial agreement cannot prejudice the reasonable needs of a child of the family. However, in the right case, a nuptial agreement will be given compelling or decisive weight, as aforementioned.

Additionally, the Court usually like to ensure each parties’ needs are met in the event of divorce. However, as we see below, this is not always the case now or if they are considered it is for a defined period.

In 2014, the Law Commission set out what it considered should be the main ingredients of a qualifying nuptial agreement as follows: –

  • That it must be a valid contract;
  • Must be freely entered;
  • Must contain a statement that both parties understand it is a qualifying agreement and it will remove the Courts discretion to make financial provision;
  • Should be made at least 28-days before the marriage;
  • Both parties should receive, at the time of making the agreement, disclosure of the other party’s resources;
  • Both parties should have sought independent legal advice

Note; the above is not statutory guidance e.g. parties don’t have to follow this. It is only recommendations from the Law Commission. Therefore, the absence of any of the above may not make a difference as to the weight to be applied but equally could be critical if they are not followed.

Jurisdiction / oversees assets

It is of utmost importance for you to consider seeking the advice of international lawyers in the Countries you have assets to ensure you are fully abreast of all advantages and disadvantages of entering a Nuptial agreement.

It may also be beneficial to include a jurisdictional clause within the agreement e.g. you may have significant property oversees and the law in that country treats Nuptial agreements as legally binding – unlike England & Wales. Again, specific international law advice will be required in these types of cases.

How the Court are approaching Nuptial agreements

There has been a major shift in the Court’s approach to Nuptial agreements following Radmacher. More and more cases now indicate that the Courts are giving significant weight to such agreements unless there are compelling reasons not to.

Even in case where parties argue that their needs are not met by the agreement, the Court are upholding Nuptial agreements. For example, in the 2023 case of MN v AN, the husband had assets of £32.5m and the wife £62,000 – prior to the marriage. The wife tried to argue that the agreement did not meet her needs and was vitiated by pressure. The Court found there was no vitiating factor and no other factor which meant it should be given less weight. In this case, both parties had instructed top divorce lawyers. The Judge in this case said ‘these agreements are intended to give certainty. Those signing them need to know that the law in this country will provide that certainty. Litigants cannot expect to be released from the terms that they signed up to just because they don’t now like what they agreed.’ The Nuptial agreement was considered fair with the wife receiving £11.75m.

In the 2014 case of Luckwell v Limata, although the Court made an award based on needs in awarding the husband a home, it was only a reversionary interest. This meant that the property reverted to the wife in the event of a certain event arising.

In the 2022 case of CMX v EJX, the Court found that the marriage contract had been freely entered into by each party. In this case the Court even held that the lack of independent legal advice or full disclosure was not fatal, the Radmacher test for upholding the marriage contract was satisfied. The Court went on to consider the Wife’s needs based on the facts it was a long marriage and she had contributed fully.

Advantages of Nuptial agreements

A Nuptial agreement entered freely with a full appreciation of the implications, legal advice, disclosure etc is very likely to be given significant weigh by the Court and upheld in the event there are any disagreements.

Other advantages include:

  • Protecting inherited wealth, gifts, family businesses, property owned before the marriage;
  • Minimises issues on divorce;
  • It saves money. It is cheaper to enter a Nuptial agreement than dispute matters in Court;
  • Parties can freely agree their own terms. If disputed at Court, financial arrangements can be very unpredictable;

One significant advantage is that the Court are unlikely to apply the s25 checklist (consideration beyond the scope of this article) in the event the parties are held to the Nuptial agreement. When applying the s25 checklist the Court must consider several matters before making Orders such as transfer of property, pension sharing, spousal maintenance etc. The Courts have a wide discretion.  In absence of a Nuptial agreement, this is often where the Court can award a significant share of the available resources to the economically weaker party, irrespective as to where they came from, e.g. this could mean one party is awarded some of the inherited wealth of the other party if the assets generated during the marriage are not sufficient to meet their needs.

A Nuptial agreement can therefore significantly curtail the Courts discretionary powers and ensure any award regarding needs is limited to those which are absolutely essential.

Concluding comments

In short, a Nuptial agreement is still not a legally binding agreement in England & Wales. However (emphasis added), the Court’s are now very likely to uphold the agreement if disputes arise, especially if there are no vitiating elements. The Court may go behind the agreement if a parties’ needs have been totally disregarded but as we have seen in recent case law, this may mean the property reverts backs to the other party.

Disclaimer

This article should not be relied upon as legal advice. You are strongly encouraged to seek independent legal advice if you are considering a Nuptial agreement. This article does not consider every single aspect of the Nuptial agreements as there are other factors which may render a Nuptial agreement unenforceable / unreliable. Each case is fact specific and specific legal advice is needed to ensure you appreciate all aspects.

 

This article was written by Colin Hornby, a Family Parter at MLP Law specialising in divorce and associated financial matters.

If you would like to speak with Colin about Nuptial agreements, please email him ColinH@mlplaw.co.uk or call his direct dial 0161 926 1581.

 

Race to the Altar!

Welcome to our series of blogs, addressing post-lockdown issues from a legal perspective. This week sees the latest blog, from our MLP Family law team, looking at prenuptial agreements.

With restrictions hopefully being fully removed on 21st June 2021, couples who have either postponed their weddings from last year or have a wedding planned for this summer, with hectic schedules of wedding preparations as a result, couples are reminded that they may wish to consider entering into a prenuptial agreement to protect their premarital assets. Prenuptial agreements are still not wholly binding in the UK but the court will seek to apply the agreement unless it a deemed unfair.

To be binding:

  1. Each party must offer full financial disclosure of assets, liabilities in the agreement.
  2. The agreement must be voluntarily entered into without duress.
  3. The agreement must be entered into at least 21 days ahead of the wedding date.

If you are getting married this summer or planning to get married and wish to receive more information about Prenuptial agreements please contact Rachael Wood who is the head of our Family team on 0161 928 1581 or email rachaelw@mlplaw.co.uk.

Residence battle myth… “All children are resilient”

It is surprising how many people comment on how resilient children are when faced with the breakdown of their family unit. Studies show that by nature some children are very resilient  some are not, like any adult a lot depends on individual personalities.

For parents its wrong to assume that all children will take a  residence  battle in their stride but its often an assumption family solicitors hear, when parents will often forget that the courts paramount concern is the welfare of a child and what is in the child’s best interest not what arrangements suit one or both parents.

For advice and assistance on child related issues please contact Rachael Wood who is a Resolution Accredited Specialist in Children Law on 0161 916 1581 or rachaelw@mlplaw.co.uk

Marriage under 18 to be Outlawed

It has been reported that the government have pledged to raise the minimum legal age to marry to 18 years old. Currently in England and Wales 16 and 17 year olds can marry if they have parental consent.

It is said that the government does support raising the age in order to protect vulnerable children and enable children to grow in order to maximise their potential life chances. It is thought by some that this legal loophole has been exploited to coerce young people into marriage. Forced child marriage has for sometime been a hidden and harmful practice

It is reported that the will be a private members bills introduced to make it illegal for anyone under 18 to marry.

If you have any questions or queries related to the above please contact Rachael Wood who is the head of our Family team on 0161 928 1581 or email rachaelw@mlplaw.co.uk.

19th Century Marriage Law finally updated!

For the first time marriage certificates are now going to include both the names of the Father and Mother of the couple getting married following a change this month the Marriage Act.

The Home office said the move would “correct a historic anomaly”.

Marriages will also be recorded electronically rather than in a registry book as part of the biggest change to the system since 1837. This is to speed up the process and remove the need for any details to be extracted from hard copies.

Marriages were previously recorded by the couple signing a register book, there are around 84,000 held at register offices and churches.

The Church of England have said “that the change to the system will not change a couples experience of their church wedding”.

If you have any questions or queries related to the above please contact Rachael Wood who is the head of our Family team on 0161 928 1581 or email rachaelw@mlplaw.co.uk.

Child Maintenance – The impact on Corona Virus you should not ignore

For those who receive child maintenance, this money is important now more than ever with the current pandemic, however for those paying child maintenance, this can lead to stress of having to find money to pay this support.

The Child Maintenance Service are part of the DWP (Department of Work and Pensions) and are responsible for most welfare benefits. It has been reported that there has been an increase in benefit claims, including child maintenance, which inevitably puts strain on the resources within the Welfare Benefits system. This also given that a lot of agencies are working on reduced staffing levels.

There has to been a formal assessment by the Child Maintenance Service not just parties using their online calculator for the assessment to be enforceable. This involves a payment of a £20 fee. Child Maintenance will be calculated from the date the Child Maintenance Service writes to the non-resident parent.

If the resident parent has an open file with the Child Maintenance Service and child maintenance stops, then the Child Maintenance Service can be instructed to pursue arrears, if the arrangement with the service is “Collect and Pay.” This means that money is collected at source from the non-residents employer. It should be noted there is a 4% fee for this service.

As a non-resident party it is important that if you do have a change in financial circumstances i.e: you lose your job or have reduced income, you must inform the Child Maintenance Service if there is an open case with them to stop arrears accruing.

It is more difficult for those who are self-employed as the Child Maintenance Service look at current income, most recent tax returns often won’t show a downturn in income. There is of course the option to have 2020 accounts up to April drawn up and send these to the Child Maintenance Service for re calculation.  

Should you require and further advice or assistance with regards to the above, please contact Rachael Wood, head of our MLP Law family department on 0161 926 9969.

Divorces see the biggest rise in 50 years

Recently, The Office of National Statistics has released the statistics for relationships that dissolved in 2019.

The key 2019 statistics for heterosexual divorces:

• There were 108,421 divorces, from 2018’s total of 91,299. This is the largest annual percentage increase in the number of divorces since 1972 when The Divorce Reform Act 1969 was introduced to make it easier for couples to divorce.

• 42,274 divorces were during the first marriage.

• Divorces were on a petition by or granted to more women than men.

• Divorce was most common in men and women aged 45-49.

• The highest number of divorces granted for fact proven was for ‘unreasonable behavior’ granted in the favor of women.

• The divorce rate among couples was 8.9 divorces per 1,000 married men and women, an increase from 7.5 in 2018.

• The average (median) duration of marriage at the time of divorce was 12.3 years, a small decrease from 12.5 years in 2018.

There is less statistical data for same-sex divorces, due to same-sex marriages only being allowed since March 2014 and the first divorces taking place in 2015. However, the statistics do show that there has been a yearly increase of divorces and in 2019 there were 822 divorces, nearly double the number in 2018 of 428 (and they haven’t reached the 7-year itch!).

A similarity between heterosexual and same-sex divorces was that ‘unreasonable behavior’ was the most popular reason for divorce.

The increase in divorces has been attributed to the backlog of divorce petitions from 2017, processed by the Ministry of Justice in 2018, and some of which would have become decree absolutes (completed divorces) in 2019.

It will be very interesting to see the statistics for divorce in 2020/2021, as we will be able to see the impact the nationwide lockdown has had on relationships, which experts suspect will have caused an influx of divorce proceedings.

Should you require and further advice or assistance with regards to the above, please contact Rachael Wood, head of our MLP Law family department on 0161 926 9969.

Divorce or Legally Separate?

Ending  a marriage is a huge decision to make and is often filled with fears and worries about the future. Some couples may not be ready to legally end their marriage and may want time to reflect but still wish to deal with the finances connected to the relationship. If this is the case Legal Separation is an option.

What is a Separation Agreement?

It is an agreement between a couple dealing with how the assets should be divided. Couples often stipulate in the agreement that they will issue divorce proceedings after they have been separated for a period of 2 years.

Is a Separation Agreement Legally binding?

No but if the agreement is drawn up properly with both parties providing full financial disclosure the court could be persuaded to uphold the agreement.

What are the advantages?

The agreement could lay the foundation for a Consent Order when divorce proceedings are issued.

What are the disadvantages?

A Separation Agreement is not automatically legally enforceable if breached unlike a Consent Order.

We are here to help…

We are to help you navigate a relationship breakdown and provide you with the advice and support  you need.

Please contact Rachael Wood, head of our family department  on 0161 928 1581 or rachaelw@mlplaw.co.uk

Kim and Kayne – Will it be amicable?

There is  always fascination with celebrity breakups, with Kim Kardashian now announcing her divorce to Kanye West there will be speculation as to how this play will play out?

Kim and Kanye are known to have a pre nup agreement which are  unlike the UK   automatically enforceable in the  US, therefore finances should hopefully be dealt with amicably and avoid any lengthy hostile litigation. What the pre nup can’t dictate is child arrangements, this will have to be agreed separately between them. It is always hoped that separating couples can construct a joint parenting plan that suits the children’s needs.

You do not have to have a celebrity status or money to consider a pre nup, with an increasing amount of people in the UK looking to entering into either a Pre Nup or a cohabitation agreement which can assist immensely should the relationship breakdown in the future.

If you would like to learn more about how a Pre Nup or a cohabitation agreement could be useful to you please do not hesitate to contact Rachael Wood who is Partner in our family department on 0161 926 1581 or rachaelw@mlplaw.co.uk

Domestic Abuse Increase

It has been reported that there is an increase of approximately 38% in domestic abuse incidents when England lose a football match. 

If you feel you need advice please click the link below for the details of various agencies you can speak to.

https://www.gov.uk/guidance/domestic-abuse-how-to-get-help#get-help-and-support

We can also help to provide you with the legal protection you may need in exiting an abusive relationship. If you wish to have a confidential conversation please contact Rachael Wood on 0161 926 2581 or email rachaelw@mlplaw.co.uk.

Pre-nuptial agreements – what if my wedding had been cancelled due to Covid 19?

The government gave the go ahead for small Weddings of no more than 30, from 4th July 2020. For some people they will be celebrating while others have not been so enthusiastic and have taken the precautions deciding to postpone until restrictions ease.

Some couples have taken that decision later than others. This then ponders the question that if a Pre-Nuptial Agreement was entered into, what is the effect of postponing the wedding on the validity of the agreement?

Most Pre-Nuptial Agreements give provision for delay of a few months, therefore if the postponed wedding date takes place within this time scale, then the original agreement will stand. Failing which a new agreement would have to be prepared and signed.

What if one party’s finances have changed due to the pandemic? The change would have to be a significant change such as a decrease in assets. Then it might be advisable to try and renegotiate the agreement.

Some people may have used lockdown to reconsider their options and now wish to enter into a Pre-Nuptial Agreement, but concerned it may be perceived as a pessimistic approach and are not legally binding in any event.

Pre-Nuptial Agreements, if entered into following the correct procedure are deemed to be persuasive by the courts, and can avoid the cost and stress on prolonged litigation if marriage does not work out which can only be for the benefit of both parties.

Should you require and further advice or assistance with a Pre-Nuptial Agreements, contact Rachael Wood, our head of MLP Law family department who has extensive experience in preparing Pre-Nuptial Agreements on 0161 926 9969.