Archive for May, 2011
We have had a number of enquiries recently about Pre-Nuptial Agreements. They raise the ISSUE of whether sensible adults should be free to determine their own property affairs or whether the Court should always retain its powers to protect the vulnerable from exploitation and try to ensure fairness?
As always it is a balancing act. There was a lot of publicity after the Supreme Court Case of Radmacher –v- Granatino last year when the Court seemed to say that a written agreement governing how property should be split should be “given weight” by the Court provided that it is entered into freely.
But the law is still uncertain as to what is required to make these agreements binding. The Law Commission has published a consultation paper about this and the consultation period has just closed. It may be that the current uncertainty will be resolved shortly by Act of Parliament.
While we wait, Clients have to decide whether it is worth their while entering into such agreements. No guarantees can be given, but it is likely that more weight will be given to such an agreement if it is-
• Clearly worded and entered into freely
• Each party has received independent legal advice before entering into the agreement
• Each party is able to demonstrate that they have had full disclosure of the other’s assets and means
So at the moment we can only advise on client by client basis. The Courts have always jealously guarded their rights to exercise their powers to ensure fairness by disregarding earlier informal agreements. It may be that, in some cases in the future, clients will be able to ring fence pre-acquired wealth such as a business, a farm or inherited assets.
We all await the outcome of the consultation paper after which we will be able to advise in more detail.