Pre-Nupital, Post-Nuptial and Pre-Registration Agreements

Pre-Nupital, Post-Nuptial and Pre-Registration Agreements

What are they?

A Pre-Nuptial Agreement enables parties intending to marry to set out what would happen in the event of separation or Divorce.

A Post-Nuptial Agreement enables parties who are already married to set out what would happen in the event of separation or Divorce.

For people entering into a Civil Partnership the same type of document is called a Pre-Registration Agreement.

Are they binding?

Clearly, there is no good in investing time, effort and expense in securing an Agreement only to find that if it is unenforceable. The difficulty is that we will not know whether or not it is enforceable unless and until the Court is asked to consider it usually on Divorce and, of course, we hope that this will never occur. All you can do is enter into the agreement in the hope and expectation that, if the worst comes to the worst and Divorce does occur, you will have done your best to protect your position and that of your children.

The leading case on enforceability of such Agreements is of Radmacher v Granatino. This did not, as many have concluded, make such agreements binding in England and Wales. It did, however, take a purposeful step towards such an outcome.

The position is that:

  • Such agreements cannot replace the jurisdiction of the Courts which will ignore such agreements if it thinks it is right to do so, for example because it thinks that it is unfair to one of the parties.
  • The Courts will continue to carry out its duty to protect a weaker, more vulnerable or intimidated party
  • It is the Courts and not the parties who will decide how assets are divided when the parties, as is usually the case on Divorce, ask the Court to make an order.

The case means that the starting point is to assume that such agreements are binding having been properly drafted and each party independently advised on them before singing freely.

This is unless there is “good and substantial reason” for not doing so because, for example, the agreement is unfair, one party has lied about their position or there has been a significant change in circumstances such as the birth of children or serious illness of a party.