Pre-Nups – So, Are They Valid or Not?

On 27th February, the Law Commission published a report about Matrimonial Property, Needs and Arrangements and immediately thereafter there was a mass of reports in the media celebrating what they were heralding as being the validation of pre-nuptial agreements. Slightly premature in my opinion.

Now that things have calmed down a little and we have all had time to digest the report, I can finally tell you what the real position is.

Pre nuptial agreements or ‘Pre-nups’ and post nups have been discussed by the Law Commission and the overriding conclusion in the report is that both forms of agreements should be given SOME recognition.  Sounds positive, to an extent– but there are many other ancillary points that have to be considered before a pre-nuptial agreement can be given any credence.

In effect, the terms of a pre-nuptial or post nuptial agreement – now termed a “Qualifying Nuptial Agreement” (QNA) WILL now be given judicial recognition and the terms WILL be enforced.  Don’t get too excited though!  More important than the terms of the Agreements will be the “needs” of the parties and the manner in which the Agreements were drafted and executed.

“Needs” – obviously the needs of a couple married for one year, will vary drastically to those married for 21 years.  How much recognition will be given to the Agreement in these circumstances is yet to be tested.

So, whilst on the face of it you will now definitely be protected from the so called ‘gold-diggers’  by having an effective pre-nup, the real bite and power of these agreements will soon be tested by the Courts.

The draft Nuptial Agreements Bill 2014 is unlikely to come in to force before the next elections – but judicial movement will no doubt begin prior to this, albeit ponderously, in any event.

For now, to give yourself the best chance of ensuring that your Pre-nuptial agreement stands the best chance of being upheld, the best move for you is to obtain specialist legal advice to ensure the terms and structure of your pre-nup meet the established and proposed requirements laid down by the report, and soon to be laid down by the Courts. The Family Department at Pinder Reaux are well versed in exactly what you need.  Bespoke pre-nups, tailored to your particular requirements, ensuring that you do not get caught in the ‘needs’ arguments, are specialised documents, standing apart from the standard online pro-forma Agreements that you can buy. They require a specialist legal mind to draft them: just like you wouldn’t use a swimming pool engineer to build your house, DON’T rely on Google to draft your pre-nup.

If you have assets that need to be protected, if you have family inheritance that your parents and forefathers have worked so hard to amass, then take a step in the right direction and come and speak to one of my team.

Rupinder Bains

MD – Pinder Reaux & Associates