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Following a decision in the Supreme Court, in which a pre-nuptial agreement entered into by a German heiress and her husband was held to be enforceable, wealthy families worried about preserving family assets in the event of a divorce should certainly consider advising betrothed family members to create a pre-nuptial agreement. Where the marriage or civil partnership has already taken place, a post-nuptial agreement may be worth considering to achieve the same end.
Pre-nuptial agreements have been commonplace in the USA for many years, but have not been widely used in the UK for the simple reason that previously the courts have refused to enforce them. As recently as December 2008, the Privy Council, dealing with a ‘big money’ case, commented that it was for Parliament, not the courts, to change the status of prenuptial agreements.
Most European countries recognise pre-nuptial agreements and Resolution – First for Family Law (formerly the Solicitors Family Law Association) has called on the Government to enact legislation in the UK to make such agreements enforceable in the UK courts.The possibility of creating formal legislation to govern pre-nuptial agreements is under discussion in Governmental and legal circles.
For a ‘pre-nup’ to be enforceable, it should be freely entered into and with the benefit of legal advice on both sides. In 2018 a pre-marriage contract entered into in Italy by a non-Italian speaker was ruled invalid on the ground that the woman who sigend it could nto fully understand its consequences.
Recently, the Government has announced its intention to give pre- and post-nuptial agreements legal effect and a 2017 decision confirmed that the Courts will enforce a pre-nuptial agreement which is properly entered into.