A Supreme Court ruling on whether substantial assets transferred between spouses during marriage should be divided equally on divorce – has reignited the importance of Pre-nups.

The ‘big money case’ saw divorcee Anna Standish lose her legal case to keep almost £80 million which her affluent banker husband had given her in 2017 to put in offshore trusts for their children and to avoid inheritance tax.

When their marriage fell apart in 2020, the money was still in her name, sparking a bitter, prolonged case which played out in the highest courts in the land.

The outcome is a reminder of the importance of Pre-nups for all couples tying the knot, especially for nigh-net-worth individuals and families involved in estate and inheritance planning.

Irrespective of a couple’s financial status, a Pre-nup helps couples to avoid  the potential distress, acrimony, and expense of disentangling their finances if they split up.

How to obtain a Pre-nup

To enter into an agreement properly, the couple each need to obtain independent legal advice on the agreement

Both must also have disclosed their assets to each other – and the terms of the agreement must produce a result that is fair and reasonable and meets needs

The agreement should be negotiated and signed at least 28 days before the wedding. This allows both to obtain advice, have time to consider it, and make an informed decision on signing it

Do courts uphold Pre-nups?

Increasingly courts are upholding pre-nups on divorce if they  are satisfied that the agreement was entered into freely, without undue pressure  and with the benefit of full financial information and independent legal advice.

As the law stands, a court still needs to approve the settlement at the point of divorce, ensuring the agreement meets the needs of both parties. If it does not, a different order can be made but this is likely still to take the terms of the Pre-nup into account to some extent.

Are Pre-nups suitable for second marriages?

Yes, the contracts can work particularly well for coupes marrying for the second time where a husband or wife seeks to retain their own wealth if they separate. They can also protect the interests of children from previous relationships.

Taking the time to draw up a Pre-nup before marriage can avoid financial and emotional heartache in a marriage breakdown. Jones Myers family law specialists are highly experienced in advising on Pre-nups and Post-nups.

For queries on any aspect of family law, call Jones Myers at Leeds 0113 246 0055, Harrogate 01423 276104, or York 01904 202550. Visit www.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet @helpwithdivorce

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The statement of a panel of judges that says:  “for most people they will not be relevant on divorce” may be correct if the agreement is tested in a court, and the terms found to be unfair.

Pre-nups have risen in popularity and influence since a 2010 UK Supreme Court ruling recommended that, although not legally binding, courts should uphold carefully thought through agreements drawn up well in advance of the marriage and without coercion. Of course, they have to be fair, and meet the respective needs of the parties. However, the determination of what is “fair” and what are the “needs” will be looked at in the light of the pre-nup terms.

The Family Justice Council guide, drawn up by a group that includes five judges and barristers, claims that pre-nups will be ‘irrelevant’ for most people undergoing a divorce – and that most courts will ignore them when they dividing up assets, basing their decisions on ‘fairness’ instead.

The guide also adds that, in the eyes of the court, “meeting needs is the central factor on divorce” and only the very wealthy – who have more assets than their former spouse could ever need – can benefit from an agreement.

The judges’ claims are based on the assumption that a pre-nup will be challenged, and indeed the Guide is aimed at people who represent themselves at Court. However, the whole point of the pre-nup is to agree things in advance in order to avoid the trauma, cost, and uncertainty of court proceedings.

If one partner does challenge the agreement, the court may have to make a decision. However, if needs are addressed and both parties deem the contract to be fair, the court will more than likely to uphold it.

The recent increasing influence that pre-nups have on courts suggests that the courts will take them very seriously into account in determining fairness and needs, and seek to ensure that these lie at the heart of the terms of such contracts. It is thought that a court is likely to follow a properly constructed pre-nup even if the terms are not precisely what the court might otherwise have ordered.

Originally drawn up to set out how a couple’s assets will be split if the marriage fails, the contracts can also address vital issues such as child residence and contact arrangements, occupation of homes on separation, interim support at the time of separation, and provision for each of the parties on the death of either or both of them.

We have witnessed the positive impacts of pre-nups which give comfort in cases where the wealthier spouse agrees to provide for the other spouse in the event of a split. Also, some couples embarking on marriage for the second time are keen to go down the pre-nup route to ensure that certain assets are preserved for their children from previous relationships – whilst others seek to protect wealth which may have been in their family for generations.

Addressing anticipated needs and reasonable requirements of both parties should always be a first priority for practitioners drafting prenuptial agreements. It is likewise understandable that a seismic change in circumstance may well influence a decision of the courts. Therefore, it is prudent that a pre-nup contains provisions to review the agreed terms in the event of a material change in circumstances. Ultimately, skilfully drafted and fair prenup’s appear to be welcomed by the courts.

Circumstances where the contracts run into problems include if judges are concerned that they are signed under pressure. They will want to know that the partner with the most to lose understood the agreement, that there was no pressure to sign and that there was independent legal advice. If there was little time to reflect on or be confident about the terms, judges may ignore or vary them.

To avoid these risks, set up the agreement at least 21 days before the wedding, make full financial disclosure and secure good legal advice. If respected family lawyers help draw up the agreement, judges can be confident that both parties understood it fully and were not rushed into it.

If you have any comments, queries or concerns on pre-nups, mediation or divorce related issues, leave a comment below, call the Jones Myers team on 0113 246 0055 or tweet us on @helpwithdivorce.

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This week, Lord Neuberger, the UK’s most senior judge, warned that reforms introduced from April 1 – which will scrap legal aid for family matters including financial issues, residency and contact with children – could undermine the rule of law.

Lord Neuberger, the President of the Supreme Court, also forecast that this would lead to people taking the law into their own hands because they no longer have access to justice.

He told the BBC that the changes – designed to cut the legal aid bill by £350m a year by 2015 – could lead to higher court costs.

I agree wholeheartedly with Lord Neuberger’s concerns. The sad reality of these reforms is that hundreds of thousands of families will be left in a legal wilderness feeling stressed and traumatised because they won’t know which way to turn. – and who to turn to.

I fear that these cruel cuts which deprive the least wealthy and most vulnerable members of our society of free or subsidised advice or representation in key areas – will have disastrous consequences.

The repercussions include more children playing truant from school, a rise in instances of depression causing people to take time off work – and increasing the strain on the NHS budget. I also predict an increase in crime as children’s problems are left unresolved.

When I embarked upon my legal career, there was an ambition within government and the profession to enable everyone to have access to justice. The more vulnerable members of society were supported through legal aid; indeed it was a fundamental part of the legal structure.

Currently a substantial percentage of cases are resolved by the early and skilful intervention of legal expertise – usually a matrimonial lawyer – but cuts in legal aid will put this kind of expert advice out of the reach of many couples.

This change in legal aid provision is, in my view, false economy. I agree with Lord Neuberger that we will see a substantial and sustained increase in people representing themselves, putting a strain on the court system and the Judge’s time – both of which are under siege at the present.

Cases will be delayed as the layperson is likely to be poorly prepared as well as unused to the protocols of family courts.  Adjournments will cause frustration, which may well boil over and exacerbate an already tense and problematic family situation.

Badly prepared Petitions and individuals trying to ‘self help’ will painstakingly swing backwards and forwards to court with little progress being made. Judges will need to dig deeper into financial matters to avoid being unfair and cases will take longer where there are problems of disclosure. Both judges and the parties involved will become frustrated, increasingly intolerant and polarised in their views.

So why has the Government failed so abysmally to count the real financial, emotional and social cost of its legislation?

What are your views on the end of legal aid? Share them with us below, e-mail us here or send us a tweet @HelpWithDivorce.

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