Pre-nup part 2 of 4: is my property safe?

A recent article in the Telegraph reported that the last few months have seen a surge in the number of couples contacting law firms to arrange a pre-nuptial agreement. The newspaper attributes this to recommendations published in February by the Law Commission in their report on Matrimonial Property, Needs and Agreements.

Until recently, it appeared that a pre-nup had little weight to secure assets at all. The courts tended not to view it as anything more than a starting point, and often, the judge displaced the agreement, finding in favour of the financially weaker partner and redistributing property and income accordingly. However, that changed with the landmark case of Radmacher v Granatino [2010] UKSC42 in which the judge, Mostyn J, ruled

“the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

There is still a safety net of unfairness: the court can deviate from the agreement if it seriously prejudices the reasonable needs of any children or leaves one party in a predicament of real need while the other enjoys sufficiency or more.

A pre-nup is still not legally enforceable, but the court is now much more likely to adhere to the terms of the agreement. And now the Law commission report has recommended that the law is changed and – providing certain safeguards and checks are first established – that pre-nups do become legally enforceable.

A change in the law may be some way off, but couples can already have more confidence that their wishes will be respected and their property protected in the way they have agreed, should the worst come to the worst and their relationship breaks down. However, to ensure that your agreement has the best chance of being acceptable to a judge, you will need to use a solicitor to prepare your pre-nup and to provide legal advice before you sign the agreement, in order for the court to ensure that there is no reason to deviate from the document.

At Andrew Isaacs Solicitors, we can arrange a pre-nuptial agreement for you. If you have reached the end of a relationship, we can help you through your divorce proceedings and advise you on the financial aspects of your divorce, whether or not you have an agreement in place.