Posted by Patrick Hart, Partner
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Council strikes a cautionary note over agreements
Previous suggestions that pre-nups could have a bearing on an increasing number of divorce settlements in Britain were recently dealt a blow by the Family Justice Council.
There is no doubt that the agreements are becoming increasingly common in the UK, in part because of comments made by the Supreme Court seven years ago, when Judges suggested it would be “increasingly unrealistic” for the judiciary to pay them no attention.
But the council’s stance earlier this month suggest that Britain is still a long way away from adopting the approach of countries such as America, where pre-nuptial agreements carry substantial legal weight and are a consideration in a large number of divorce proceedings.
According to the new guidance, only the wealthiest individuals can expect to benefit from pre-nups, with Judges likely to give precedence to other factors, such as the needs of a couple’s children, in the vast majority of cases.
Mrs Justice Roberts said: “The current law says that a pre-nup will only be followed by the court if the parties entered into it voluntarily and fully understanding what they were agreeing to, and even then it will not be followed if in the circumstances which exist at the point of divorce it would not be fair to hold them to the agreement.
“The courts will not regard an agreement as fair for these purposes if it does not meet each parties’ needs and the needs of the children. It is only in cases where there are plenty of assets available to meet both spouses’ needs, and then a surplus left over, that a pre-nup is likely to have real value.
“A pre-nup can be used to protect that surplus so that it does not have to be shared with the other spouse. For the majority of couples, there is no surplus remaining after needs have been met, and so nothing in relation to which a pre-nup can make any difference.”
That said, the council acknowledged that an agreement to make clear that a specific item or piece of property – for example a family heirloom – is to remain with one partner or another after a divorce may be given consideration.
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