As a non-practising solicitor, I have dealt with pre-and post-nuptial agreements and advised clients accordingly that if their relationship were to fail, then the Courts would ultimately have the final say over whether such agreements were binding on the individuals. I have also assisted couples to create pre- and post-nuptial agreements within mediation, subject to independent legal advice, and it is heartening that the Law Commission have recommended that legislation be introduced to recognise “qualifying nuptial agreements” without the Court’s scrutiny. The Law Commission recommended that “these would be enforceable contracts, not subject to the scrutiny of the courts, which would enable couples to make binding arrangements about the financial consequences of divorce or dissolution. In order for an agreement to be a qualifying ‘nuptial’ agreement, certain procedural safeguards would have to be met. Qualifying agreements could not, however, be used by the parties to contract out of meeting the ‘financial needs’ of each other and of any children”. The only way at the moment to achieve finality in matrimonial financial matters is to ask the Court to make an order reflecting the terms of any agreement reached between the couple. The full details of the report can be read here: Law Commission Report
In my experience, couples do not enter into discussions lightly in relation to such agreements either before marriage or during marriage. Many people have had previous relationships and have suffered enormous litigation costs in trying to reach a settlement when the relationship has ended. Others have received gifts of land or property from relatives upon marriage or during marriage and seek to ensure that the land or property is not lost upon any dissolution of the relationship. There are many other reasons why couples would consider such agreements.
Much as we may not wish it to be, relationship breakdown is a part of our society and the great majority of us, I would hope, do not enter into a relationship on the basis that it will inevitably result in divorce. Rather than dilute marriage, I would argue, it is a grown up and mature way of confirming a commitment to each other regardless of the financial benefits that one or other may potentially gain from a marriage. Nuptial agreements provide a level of security enabling people to happily get on with their lives, although the cynics would argue that any such agreements necessarily entail a couple considering that the relationship will end thereby eroding any such promise as “until death do us part”.
In as much as we purchase insurance against almost anything these days, I would suggest that we do not purchase the insurance to deliberately cause the peril insured against but simply for peace of mind. In a similar way, nuptial agreements are similar to an insurance policy – there “just in case”.
The alternative may be to not marry at all!
Cathy O’Mahoney is a Divorce Consultant and a Mediator in East KentThe contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.