If a couple planning to marry wish to set out, in advance of their marriage, the financial arrangements that currently apply and which they would intend should apply in the event of a subsequent divorce, then it is open to them to do this by entering into a Pre-Marital or Pre-Nuptial Agreement.
As things stand at the present time the court dealing with the divorce retains jurisdiction to deal with financial and property issues and is not legally bound to follow the terms of any Pre-Nuptial Agreement. However, the courts have made it increasingly clear that, where a couple enter into a Pre-Nuptial Agreement, then, subject to certain safeguards, the court is likely to regard the existence of that Agreement as a very material factor in deciding what the outcome should be if either party made financial or property claims against the other within a subsequent divorce.
There are various safeguards both in terms of the original execution of the Pre-Nuptial Agreement and also in connection with the status of the parties at the time of the divorce. The court will therefore need to be assured that the Agreement when originally entered into was reached fairly. They will be looking for evidence that both parties had access to separate independent legal advice, and that both parties had all the information that he or she wanted about the other’s circumstances before committing to the Agreement. The court would also need to be satisfied that no unfair influence was brought to bear on either party to sign the Agreement.
The safeguards that will apply if a claim is made within divorce are that the court will generally look to make sure that it would not be unfair to hold a party to the terms of the Pre-Nuptial Agreement. Inevitably that would involve an element of investigation of the current circumstances of the parties in order to be sure that the terms that were originally agreed between them before they got married did not need to be adjusted to take account of changing circumstances since the Agreement was signed.
The status of Pre-Nuptial Agreements is under review and there may well be changes in the law in due course which could make such Agreements legally binding as long as certain specified factors are present. However, the position at the moment is that the court will give significant weight to the terms of any Pre-Nuptial Agreement but still retains the overall power and jurisdiction to override the terms of the Agreement if it is felt that in the circumstances of the case it would be unfair to hold the parties to the Agreement.
It is therefore important that anyone who enters into a Pre-Nuptial Agreement is aware that, while the Agreement may well play a significant role, it is not absolutely binding on the court in the event of claims being made in a subsequent divorce.
Similar principles apply if a same-sex couple wish to sign a Pre-Civil Partnership Agreement before they register their civil partnership.