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The pre-nuptial agreement comes of age

Are you thinking of getting married in the next few months?

Whether it is for the first time or not there will be excitement and a justifiable sense of romance. But there are also the ‘boring bits’: lots of sensible decisions and hard choices that must be made right now.

It’s a time when couples must be honest with each other about what their hopes and aspirations might be and a time to consider whether there is anything from their previous lives which they would want to preserve for themselves, come what may, in the future. Advocate Rose Colley, a leading practitioner in family law believes that if this applies to you, the right move would be to enter into a pre-nuptial agreement with your partner.  It might at first sound unromantic; but it would be an sensible and practical step.

You may have read in the national press about the case of Katrin Radmacher, a German heiress who was successful before the English Courts in her bid to stop her ex-husband receiving any of her £55 million fortune. Four months before the wedding, Miss Radmacher asked her ex to sign a deal in which he agreed he would leave her fortune untouched if they split up. The couple subsequently divorced in England, where the courts have previously refused to enforce such agreements. The Court of Appeal in London held that ‘decisive weight’ should be given to the agreement as part of the factors that the divorce court have to take into account in all cases.

Three questions arise from this decision for couples in Jersey:

  1. Would the Jersey family court treat pre-nuptial agreements in the same way?
  2. Are there any couples in particular who should seriously consider the pre-nup?
  3. Why have the courts in England now changed their long established attitudes to such agreements?

Family law in Jersey invariably follows English judgements and therefore if a similar case came before the court here, there would be an extremely strong argument to follow the Radmacher decision. Therefore the answer to the first question is “yes almost certainly”.

Which couples should consider making a pre-nup? It would be wrong to think that only the super rich need to worry about such agreements. Lord Justice Thorpe in Radmacher said that such agreements are of value to:

‘Mature couples, perhaps each contemplating a second marriage, (who) wish to regulate the future enjoyment of their assets and perhaps to protect the interests of the children from the earlier marriage upon the dissolution of a second marriage’.

These may be the main candidates for pre-nups, but younger couples may also want to consider them. This would certainly be the case if they are entering the marriage with existing assets, such as ownership of a previous home or hard earnt pension pot, that they wish to protect.

Why then has the law changed so dramatically in the last few months? The answer appears to lie in the fact that the courts are increasingly of the view that they should treat adults as the grown-ups they are who should be free to choose how to regulate their financial affairs as long as those choices are informed, free and fair and do not adversely affect any children of the family. The family court will always want to achieve fairness and this means that if couples enter into a pre-nuptial agreement of their own free will and after taking independent and proper legal advice, then that agreement will be given decisive weight in any divorce.

So enjoy choosing the outfit, your honeymoon destination and ordering the wedding cake.  But if there is something of your own that you’d like to be sure of preserving in the future, explain to your loved one that coming to a simple legal agreement before you take your vows would be one way of removing some stress from your lives in the future.  It’s simply a sensible step to take. You need to remember that not all marriages have a ‘happy ever after’ ending.

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