PRE RELATIONSHIP AGREEMENTS Pre nuptial contracts are becoming increasingly popular. There are probably a number of reasons for this:- 1. Globalisation - more and more couples from different backgrounds and nationalities are getting married. They want a document which provides certainty. They do not want to see the financial settlement following the breakdown of the marriage having to depend upon the law which will be applicable in a particular (perhaps uncertain) country at an uncertain date in the future. 2. The pressures and style of modern life makes the idea of "marriage for life" increasingly difficult to achieve. 3. English divorce finance law is very uncertain, particularly for short to medium length marriages. 4. The increasing integration of Europe and with it the attempted harmonisation of laws. In most European countries a limited form of pre nuptial agreement is the rule rather than the exception; as is legally binding. 5. The conservatism of sections of the press and the public has meant that English statute law does not reflect modern family life. This is in stark contrast to developments in the "old Commonwealth" countries such as Australia, New Zealand and Canada, as well as the United States. 6. The increasing relative number of second marriages (and third marriages!) compared to first marriages. 7. The increasing number of ex partners, ex spouses and children from previous relationships, all of whom may have to be catered for. Pre nuptial agreements are not binding under English law. However, when the divorce Court comes to consider "all the circumstances" while sorting out finances following divorce proceedings, increasing weight is attached to the existence and terms of any prenuptial agreement. Circumstances do change; the most obvious being the birth of children. The greater the change is circumstances the less weight the Court is likely to attach to the terms of a "pre-nup", as they are called in the trade. Conversely, the smaller the change is circumstances the greater the weight the Court will attach to the existence of a pre marriage contract. Case law (judge made law in individual cases which is binding on lower courts and of strong persuasive importance in equal or superior courts) has decided that there are certain criteria which ought to be met. The more criteria that are satisfied the more weight the court will give to the agreement. These are:- a) Both parties require separate and independent legal advice. b) Both parties must provide full and frank disclosure of their financial circumstances. c) The agreement must not be entered into under duress. d) The agreement must be entered into well before the marriage, usually at least 28 days. Every situation is different. The agreement invariably turns out to be significantly more complex than is initially envisaged. Only family lawyers of experience who specialise (probably specifically) in divorce financial law should be instructed. The more complex the financial, and personal, circumstances of the parties, the more complex the agreement. However, do not expect your solicitor's bill to be small. Having said that, imposing as much certainty as possible now can prevent an awful lot of heartache and legal costs at a later date. In passing I would mention:- a) That it is possible to have a post-nuptial agreement. This might happen for example is one partner wants to take a financial risk such as setting up a new business and the other partner does not agree. b) Pre-nuptial agreements should probably be reviewed, particularly after the birth of children, but also if there is a significant change in financial circumstances, or with the passing of time. c) With very minor provisos the above applies equally to civil partnerships. Indeed, with civil partnerships pre civil partnership agreements are likely to be even more important. First, there are likely to be assets accrued before the civil partnership legislation came into being, which ought to be sorted out prior to the entering into of a civil partnership by the couple. Secondly, the couple is less likely to have the agreement's provisions weakened by the birth of a child.