(or premarital) contract is a written agreement made by a
couple who intend to get married, which specifies the financial
arrangements which would be made between them in the event
that they divorced.
agreements are enforceable and therefore quite common in some
Jurisdictions, such as the USA and some European countries.
Under English Law, prenuptial agreements are not automatically
enforceable by the Courts. Increasingly, the existence of
a pre-marital agreement is one of the factors which will be
taken into account by the Court, in any financial proceedings
ancillary to the divorce, ('as part of all the circumstances').
This is particularly so in short marriages and where there
are no children of the marriage. They are therefore of particular
importance in later marriages or those where the couple does
not intend to have children.
are certain specified safeguards which the couple should adopt
for the courts to place appropriate weight on the terms of
a pre-nuptial agreement. One of the most important of these
is that they should each have received independent legal advice
before they entered into the agreement. This is particularly
so where there is 'inequality of bargaining power', for instance
in a marriage where one party is exceptionally wealthy.
number of couples are choosing to enter into prenuptial agreements.
These couples want to clarify what would happen if they divorced.
Often they wish to agree to exclude assets acquired before
the marriage or those which are inherited. They feel that
a prenuptial agreement is likely to minimise disagreement
if they separate. This has proved to be the case quite often,
but by no means always and recently there have been some notorious
cases where the enforceability of a pre-nuptial agreement
has been challenged in the English Courts. These challenges
have met with varying degrees of success depending upon the
circumstances of each particular case.