Statutory law is set out in section 25 of the Matrimonial Causes Act 1973. Pre/post nuptial agreements are taken in to account as “one of the circumstances”
The law however is informed and interpreted by decisions of the Higher Courts “case law” as the Courts grapple with changing society and it’s needs, including the requirement for pre and post nuptial agreements in some marriages. Pre-nups and post nuptial agreements are no longer void on the grounds of being contrary to public policy as was the case some 20 years ago.
Over the past 5 years or so the Courts in England and Wales have, in a series of landmark decisions transformed the way in which pre-nups and post nuptial agreements inform decisions in financial cases on divorce.
Milestone pre-nups
In Crossley v Crossley [2008] the presence of a pre-nuptial agreement was described as a “factor of magnetic importance”
The Supreme case of Radmacher v Granatino [2010] set the new benchmark for how such agreements are to be determined. The Supreme Court ruled that pre-nuptial agreement are to be given effect so long as both parties freely entered into such an agreement and each party was fully aware of the content and impact of the agreement
Very recent decisions of the Higher Courts demonstrate that it is the manner in which a pre-nuptial/post-nuptial agreement is entered into which is the important factor. Legal safeguards are therefore of vital importance to ensure as far as possible that your agreement is enforceable.
The Law Commission has been looking into the issue of Marital Property Agreements since 2009. The final report is due to be published later this year (2013). It is unlikely however that any future legislation will be passed until well into 2014, if not beyond.