Pre-Nuptial Agreements in the UK

What are they?
A pre-nuptial agreement (also known as a pre-marital agreement) is a written contract between a bride and groom-to-be that sets out to agree on how their assets are distributed (or remain theirs) should their marriage fail.

For many, the idea of entering into a marriage with a contract that deals with what happens in the event of the marriage failing seems to question their commitment to eachother. However, they are useful for marriages between couples where one has substantial wealth and the other does not.

Are they legal in the UK?
In the United Kingdom, pre-nuptial agreements currently have no legal standing. The divorce courts have the last word in the division of all matrimonial property and would ignore any pre-nuptial agreement if they thought that it was in any way unreasonable to either of the parties involved, particularly regarding to the maintenance and housing of children. For example, regardless of whose name a couple’s property is in, a court may order it to be transferred to the other. This applies to all property that is owned seperately or jointly

However, the rules for unmarried couples are quite different and legally binding contracts are enforceable so long as the couple remain unmarried. It is divorce that gives the courts jurisdiction to intervene and make orders. The widespread belief that long standing unmarried couples have rights as common law husband and wife is a myth.

The Future
For how long the current situation will remain is unclear. However, in February 1998, Geoffrey Hoon, the Parliamentary Secretary at the Lord Chancellor's Department, gave a boost to pre-nuptial agreements when he announced that there are "significant advantages" to legally binding pre-nuptial contracts. His comments were in the context of seeking ways in which the government can achieve savings in the huge legal aid bill and to reduce the time and stress involved in lengthy divorce court proceedings.

Although pre-nuptial agreements are not the answer to all divorce problems, there is consensus that for short, child-free marriages, they do have a distinct benefit.

Despite the government’s forward thinking, the pressure on the parliamentary timetable makes it unlikely that recognition of pre-nuptial contracts will make the statute books in the very near future. However, the matter does now seem to be firmly on the agenda as it is an area where the government can see better use of the tax-payer’s money.