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Are pre-nuptial agreements enforceable? 01/01/2009

On 17th December 2008, the Privy Council ruled that the terms of pre-nuptial agreements were neither binding nor enforceable.

This does not mean that pre-nuptial agreements are worthless for would-be spouses because the agreement still constitutes a factor which a court may take into consideration in divorce proceedings. However, this does not mean that a court is bound to make an order in identical, or even similar, terms to the pre-nuptial agreement. However, the court ruled that agreements entered into after a marriage can be binding. These agreements are called post-nuptial agreements.

The court's decision has wide-ranging significance for all married couples, those planning to marry, and anyone contemplating getting married in England and Wales. Any couple that has entered into a pre-nuptial agreement prior to their marriage should consider converting it into a post-nuptial agreement. Indeed, all married couples should now consider entering into post-nuptial agreements to provide them with greater certainty should they later divorce.

The court held that post-nuptial agreements are very different from pre-nuptial agreements because, by the time a post-nuptial agreement is negotiated and executed, the couple are already married and the agreement is no longer the price which one party may extract for his or her willingness to marry.

Couples who sign pre-nuptial agreements should therefore also make a post-nuptial agreement once the marriage has taken place. Re-signing the pre-nuptial agreement after the marriage has taken place will not suffice; a fresh post-nuptial agreement should be agreed and executed.

For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.

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