Update in respect of Nuptial Agreements with Brexit in mind

As an expert specialising in Family Law, it is now much easier for me to give my clients robust advice on the extent to which either pre or post-nuptial agreements will be taken into account by the Court.

Subsequent to the Supreme Court case of Radmacher [2010] UKSC42 and developments in this area, solicitors can now, with much more confidence, advise clients to spend time and incur a bit of expense in the process of drafting a pre-nuptial or post-nuptial agreement.  

The Law Commission has provided guidance as to factors that will be taken into account if a Court was to assess whether or not such agreement should bind parties upon a divorce such as, parties entering into full and frank financial disclosure, having had the opportunity to take legal advice etc.  However, we still have no statute/legislation to provide absolute certainty.

Impact of Brexit

By way of update the case DB –v- PB [2016] EWHC3431(Fam) made it abundantly clear that pre-nuptial agreements can indeed drastically impact the outcome of a financial case.  Whilst, in this case Mr Justice Francis (the Judge presiding), found the agreement to be unfair, he also stated it could not be disregarded.  The fact that there was a binding agreement (under the maintenance regulation) that the Swiss Courts had jurisdiction, meant that the English Court could not make a determination that fell within the parameters of maintenance.  Therefore, the Court could not make any Orders for spousal maintenance nor could the Court make an Order to meet the shortfall between what the agreement provided and what the wife (in this case) needed.  

The Judge in the English Courts hands were tied – whilst it was a “needs case”, there was no jurisdiction for the Court to make an Order.  This case is an interesting case as there is an element of EU Law.  We will see what happens to similar multi-jurisdictional cases post Brexit.  At this point in time, it appears that the UK Government and the EU Commission both agree that if a couple reached an agreement (pre-Brexit) as to which Court should determine maintenance claims on divorce, they could be bound by that agreement post-Brexit.

Whilst there still seems to be some uncertainty about the validity of pre or post-nuptial agreements, I firmly believe these must now be enshrined in statute to avoid leaving any element for uncertainty and the hope for the future is to have some clear legislation and statute that we can rely on. 

For more information about the services that Hughes Paddison can provide in the area of pre-nuptial and post nuptial agreements please click here. Or you can contact the author of this article Jennifer Allen.