In our article on Pre-Nuptial Agreements of July last year we reported a Court of Appeal decision which may serve to increase the possibility of Pre-Nuptial Agreements being enforced by the Courts on subsequent divorce/dissolution of civil partnership of the parties.
Pre-Nuptial contracts are agreements couples enter into before marriage/civil partnership in an attempt to agree how assets should be divided in the event of their divorce/dissolution of civil partnership.
Post-Nuptial Agreements are agreements parties enter into after their marriage/civil partnership governing future arrangements for their marriage/civil partnership.
The decision of MacLeod v MacLeod  1 FLR 641 makes it clear that there is nothing to prevent a married couple from entering into financial arrangements governing their life together by entering into a Deed governing their future rights in the event that the marriage should fail. Presumably therefore by the same token the Courts would adopt the same approach for partners in a civil partnership.
The MacLeod case concerned a couple who entered into a Pre-Nuptial Agreement before their marriage and then a Post-Nuptial Agreement after their marriage confirming that they still intended to be bound by the Pre-Nuptial Agreement subject to certain variations.
Whilst this area of law is by no means certain there is a clear move towards the English Courts allowing couples to make their own decisions regarding the division of assets on separation.
For more information contact Anita Toal of our Family Team.
What is a Pre-Nuptial Agreement?
What is a Pre-Nuptial Agreement?
A Pre-Nuptial Agreement is a legal agreement made between two people who are about to get married. It normally states how the parties want to divide their assets if they later divorce or maybe how they want to deal with finances during the marriage.
What are the Advantages of a Pre-Nuptial Agreement?
Pre-Nuptial Agreements are appropriate for many circumstances, but typically they are made by people who are marrying for a second time, have acquired wealth prior to the marriage, those with inherited wealth or those who want to reduce the possibility of conflict if they were to divorce in the future.
Pre-Nuptial Agreements are great for having that peace of mind before getting married so that both parties know exactly where they stand in all circumstances.
Is a Pre-Nuptial Agreement worth entering into?
If you are sure of the agreement and are willing to be bound by the terms of the agreement then it may be worth entering into. It is certainly worth considering whether the agreement could be disadvantageous to you should you separate from your spouse in later years. It is important that you make a fair agreement for you and that you both take separate and independent legal advice from a specialist solicitor.
Will the agreement be binding?
In England and Wales the courts do not have to follow the terms of a Pre-Nuptial Agreement when dividing up the assets of the marriage but in recent years the courts have been more willing to adopt the terms of a pre-nuptial in certain circumstances. The agreement is likely to be binding if the parties enter into it of their own free will, without undue influence or pressure and if they have been informed of its implications. It must also be fair to hold the parties to their agreement. For the agreement to carry weight, it needs to be properly drawn, both parties need full knowledge of each other's financial circumstances, and both parties need to take independent legal advice before entering into the agreement. Factors which may make an agreement unfair include failure to take account of the needs of any children or the length of the marriage.
A Pre-Nuptial Agreement must be fully completed at least 28 days before the wedding. Therefore, the process must be started before this to allow both parties time to obtain legal advice, get disclosure of each party's financial situation and allow both parties to sign the agreement.
Missed the deadline?
If the Pre-Nuptial Agreement is not completed in time, a Post-Nuptial Agreement may be an alternative. The difference between a Pre-Nuptial Agreement and a Post-Nuptial Agreement is that a Post-Nuptial Agreement is made between two parties who are already married.
What do I do next?
Maples Solicitors LLP has a specialist family law team who are more than happy to advise on any area of family law and the best course of action. Maples Solicitors LLP has years of experience with Pre-Nuptial and Post-Nuptial agreements. Maples offer an initial Fixed Fee Appointment so that you can discuss what is best for you.
If you would like further advice and information, please contact Maples Solicitors LLP on 01775 722261 or email firstname.lastname@example.org.
Landmark Decision Pre-nuptial Agreements/ New Law
Prenuptial contracts are agreements couples enter into before marriage in an attempt to agree how assets should be divided in the event of their divorce. Strictly speaking such contracts are not absolutely enforceable in English Law
However, in a landmark decision yesterday (02.07.09) the Court of Appeal rewrote the divorce laws to give resounding backing to prenuptial contracts. Lord Justice Thorpe said that any rule that prenuptial contracts are void seemed to be ‘increasingly unrealistic’
This decision effectively reverses the law to date which dictates that on a divorce, the court has ultimate jurisdiction to divide the assets of the marriage as it sees fit according to what is reasonable in the circumstances of each individual case. This meant that a court could ignore a prenuptial contract entered into by the couple before the marriage in which they agreed ‘who should have what’ in the event of their divorce. There has been no guarantee to date therefore that a court would enforce the terms of a prenuptial agreement. Prenuptial agreements that have been successfully enforced to date have usually been in cases where the marriage survives for only a short period of time and where there are no children. This latest case however suggests that couples may now stand a better chance of agreeing how their assets should be divided in the event of divorce to create greater certainty for both parties.
Only time will tell whether the decision will be overturned by the House of Lords or whether the courts will, in the future, seek to limit the circumstances in which such agreements are binding but clearly there appears to have been something of a sea change in the attitude of the courts in this area.
For more information contact Anita Toal of our Family Team
The recent case of AVH v SI and Another  EWHC 2938 (Fam) highlights the principles to be considered by the court when deciding whether, on the application of a parent, a child should be returned to a different jurisdiction.
The case concerned a 15 year old child who had been living with her mother in Mexico since the separation of her parents in 2010. In 2014 the child visited friends in London albeit unbeknown to her mother went to visit her father. At the time of the hearing the child was living with her father and the mother made an application for return of the child to Mexico.
It was held by the court that the retention of the child in the UK was wrongful and Article 12 of the Hague Convention required the court to order the return of the child forthwith to Mexico.
While the child wished to remain in the UK and the court had to take her views into account this merely gave the court discretion to consider whether or not to return. However, the court had to consider the child’s views in the context of the strength, conviction and rationality of those views and in the particular circumstances of the case the court ordered the return of the child to Mexico.
How long do I have to wait for a divorce?
If you have been married for a year or more then you can apply for a divorce immediately but that does mean that you would have to do so on the basis of your spouse’s adultery or behaviour. While that does not sound very appealing and may cause some argument, we can limit what you have to say about your spouse, and also send them a draft petition before we send it off to make the situation as amicable as possible.
If you have been separate for 2 years or more, then you can apply for a divorce with your spouse’s consent without the need to prove any adultery or behaviour; if your spouse left you 2 years ago or more you can apply on the basis of ‘desertion’ without their consent and also if you have been separated for 5 years or more you can apply for divorce in the same way
In terms of how long the divorce might actually take, it does vary case to case, however it may take around 6 months from start to finish and in some cases longer although in the meantime progress can be made in sorting out finances
Our expert family team will be able to give you an estimate of time once they know more about your case and are happy to help with your divorce. If you would like further advice, please call 01775 722261 to arrange a meeting, or email email@example.com
Mums and Dads to Share Parental Leave
In November 2012 Deputy Prime Minister, Nick Clegg announced that from 2015 the UK will have a new system of flexible parental leave. The changes will allow both parents to share up to a year’s leave to look after their new-born children, allowing fathers to play a greater role in raising their children and helping mothers to return to work at a time that’s right for them.
Under the new radical system of parental leave, parents will be able to choose how they share the care of their children in the first year after birth. Employed mothers will still be entitled to 52 weeks of Maternity Leave, but working parents will be able to opt to share the leave. Mothers will still have to take at least the initial 2 weeks of leave after birth as a recovery period, but following that they can choose to end the Maternity Leave and the parents can opt to share the remaining leave as flexible parental leave. It will be up to the parents to decide how they share the remaining weeks of the leave.
Obviously each parent will have to meet the qualifying criteria for leave and/or pay in their own right. The qualifying criteria is likely to mirror the current requirements of statutory maternity and paternity pay.
It is believed that the greater flexibility for parents will provide a more motivated and productive work force for businesses.
The Government also announced plans to extend the right to request flexible working to all employees, not just employees with a child under 17 (or under 18 if the child is disabled) so to again give greater choice and freedom to workers and businesses.
The current statutory procedure for considering requests will be removed, and instead employers will have a duty to consider all requests in a reasonable manner and within a reasonable period of time. Businesses can still refuse requests on business grounds but the Government believes that these new laws will bring benefits to employers as well as to their staff.
These changes and the right to request flexible working are likely to be introduced in 2014.
Daven Naghen of our Employment Team commented as follows:-
“I can see the obvious benefit to working parents but I am not so sure that these two sets of proposals are as advantageous to businesses as Mr Clegg thinks. From my experience there are plenty of businesses already who have difficulties managing the current working patterns of their staff under the current regime, and adding more flexibility for staff could be a real headache to businesses and may involve greater administration and cost for businesses.”
If your business needs help on any current issues relating to flexible working for staff or parental leave then please contact Daven Naghen on 01775 722261 or email firstname.lastname@example.org or Gemma Mayer on 01775 722261 or email email@example.com