The rising Popularity of Nuptial Agreements

Written by Anne Shears | Family team |15 September 2023

Any Britney fan and especially one who is a family lawyer, will have seen the news of her marriage breakdown and hoped that she had a Pre-Nuptial Agreement.

The law relating to Nuptial Agreements in America is different from that in England & Wales but the popularity of Nuptial Agreements in this jurisdiction continues to rise.

Whether people are marrying for the second time, marrying later in life, or come to the marriage with greater wealth (self-made or from inheritance/gifts from family) couples are increasingly interested in having an agreement about what will happen financially should their relationship break down.

Financial proceedings in divorce can often be long and complex.  Judges have wide discretion that can sometimes make it difficult to be certain what an outcome will be. Currently, there is no legislation that makes a Nuptial Agreement binding. If there is a Pre-Nuptial Agreement or Post-Nuptial Agreement, it will be taken into consideration by the Judge. If it is fair and parties’ needs are met, it is increasingly likely that the terms of the agreement will stand.

As time goes on and, subject to the individual circumstances of a case, Family Courts are leaning towards treating a Nuptial Agreement like any other form of contract. As long as various steps are taken in preparing a Nuptial Agreement, both parties should expect a Judge to uphold the terms unless doing so would be unfair.

The change in the tide started with the case of Radmacher v. Granatino in 2010 within which it was decided that agreements that have been freely entered into are likely to be enforced if the following applies:

• The parties have given financial disclosure

• The parties have taken independent legal advice

• The parties have entered into their agreement in full appreciation of the implications.

• The agreement needs to be entered into in good time before the wedding so there can be no suggestion that either party was under pressure

It is important for parties to keep their Nuptial Agreement under review, especially if they have significant changes in their lives as time goes on, including the birth or adoption of a child, receipt of a large inheritance or if one of the parties is unwell.

All agreements will be considered against the needs of the parties at the time of the separation. It is likely that if the terms of a Nuptial Agreement were to be upheld, the needs of one of the parties would not be met, the Court is likely to make a different decision.

A case earlier this year, (Cummins v Fawn) brought some clarification about movement away from the terms of a Nuptial Agreement if there is need. It was decided that the Court must look at the range of potential fair outcomes and if (even if not generous) the terms of an agreement do fall within that range, even if at one extreme, the Nuptial Agreement is capable of being considered as fair by the Court and upheld.  If an agreement is found to be unfair, this case states that a Court should alter the provision by no more than is necessary to bring a party’s lifestyle just within the range of fair outcomes.

Another case this year, (MV and MW) also upheld the validity of the terms of a Nuptial Agreement. In that case, the parties had entered into three written agreements prior to their marriage, two in Sweden and an English Pre-Nuptial Agreement.  Earlier in the year following their marriage, they then entered into an English Post-Nuptial Agreement.  An element not covered within their Agreements related to child maintenance, although the agreements were drawn up on the basis that the parties planned to have children. Separate provision was ordered by the Judge in relation to child maintenance but, otherwise, having considered whether resolving division of assets and spousal maintenance in accordance with the terms of the Nuptial Agreement was a fair outcome, and having worked through factors set out in the Matrimonial Causes Act, those terms were upheld.  The Judge commented, “these parties could have done no more to make clear their intentions as to what should happen in the event of separation in terms of their assets and the issue of spousal maintenance”.

These cases show that the Court will still look at all circumstances of the case when making a decision including if the terms of a Nuptial Agreement are fair, but the outcome is now more likely to be as close to the terms of a Nuptial Agreement as possible, even if that Nuptial Agreement is found to be unfair.  This is positive for anyone wishing to agree how their finances should be divided should they separate.

If you are interested in knowing more about Nuptial Agreements, either before or after a wedding, please contact our specialist Family Team who are happy to discuss matters and talk through the options available. You can call the team on 01752 827030 or email us at enquiries@nash.co.uk.