Should a pre-marital agreement be made before a marriage?

What are pre-marital agreements?

Pre-marital agreements are sometimes known as pre-nuptial agreements. It is essentially a contract made between two people before they get married concerning how the property or money belonging to the couple should be divided in the event of a separation or divorce.

Are they enforceable in an English court?

Traditionally the courts of England and Wales take the view that an agreement of this nature is by itself not enforceable. Pre-marital agreements are in fact enforceable in other countries such as Sweden, Canada and New Zealand. These types of contracts also feature in certain religions such as Islam. In 1998 the Government produced a White paper called ‘Supporting Families’ which considered whether it should be appropriate to make these contracts made before a marriage legally binding. At the moment however there have been no actual proposals put forward in order to bring about any legislation to implement any new reforms.

What does recent case law suggest?

It appears that recent divorce cases decided by the courts in England and Wales are being more influenced by any pre-marital agreements made prior to the marriage. In the case of K V K in 2003 the Judge stated that pre-marital agreements are important and that they should be considered by the court. Interestingly the judge felt that the wife in the case should not be limited to the share of finances agreed in the pre-marital agreement and that she could be awarded more. However in the case of Macleod v Macleod decided in 2008 the Privy Council concluded that a pre-marital agreement made before a marriage would carry less weight that an agreement that was reached during the marriage. It can be seen that it is currently not possible to say for certain how a court will use a pre-marital agreement in the event of a divorce and currently there are no definite answers on the matter. However it appears that the court is taking more of an interest in the agreements and that more developments in the future could lead to more affirmative decisions. 

Advantages and Disadvantages of a pre-marital agreement

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