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An increasing number of people are choosing to have a pre-nuptial agreement, otherwise known as pre-marital agreement. A pre-nuptial agreement is an agreement which the parties enter before they marry or form a civil partnership. The agreement deals with what will happen in the event of a divorce or dissolution.
Traditionally the courts have been reluctant to attach too much weight to such agreements on the basis that they were contrary to public policy and were an attempt to override the divorce laws. Pre-nuptial agreements are still not binding in English law but, following the judgement in the case of Radmacher v Granatino (October 2010), the court should uphold a pre-nuptial agreement if the parties entered into it freely and with a full appreciation of its implications, unless in the circumstances prevailing it would be unfair to hold the parties to the agreement. Although the court provides no definitive guidance on what is considered ‘unfair’, a pre-nuptial agreement will not be binding in the following circumstances:
If you wish to have a pre-nuptial agreement, we advise that both you and your partner obtain independent legal advice and that you enter into the agreement at least 28 days prior to the marriage or civil partnership.
A post-nuptial agreement is an agreement the parties enter after a marriage or civil partnership takes place, dealing with what will happen in the event of a divorce or dissolution. Following the judgement in Radmacher and Granatino, the legal status of a pre- and post-nuptial agreements is the same.