Post (and pre) nuptial agreements, agreements entered into either during (or before) a marriage or civil partnership which seek to determine what happens to a couple’s finances should the relationship end, are becoming more common in the UK. There has been a flurry of recent cases in which the courts have been asked to decide whether these agreements can be enforced.
In the most recent case B v S (Financial Remedy: Marital Property Regime) [2012] EWHC 265 (Fam), partner Bradley Williams represented the wife in a case which concerned the impact of separate property regimes and a post nuptial agreement on a divorce. The couple had married in Catalonia, Spain where, in the absence of any other agreement between the couple, each party would, on a divorce or on death, keep those assets which were in their own name. Some years later the couple moved to Peru where they entered into an agreement (a post nuptial agreement) which reconfirmed the principle that the assets of the couple were to be treated as separate, rather than shared, assets.
Some years later the wife began divorce proceedings in the UK and the couple could not agree on how their assets should be split. The wife argued that they should be split as shared assets according the principles of English law. The husband argued that the effect of the separate property regime under which the couple had married and the subsequent post nuptial agreement meant that each party should keep their separate assets – there should be no sharing of assets.
Having looked at all the circumstances of the case, the High Court judge took no account of the separate property regime and dismissed the post nuptial agreement on the grounds that neither party had entered into the agreement with a full appreciation of its implications on a future divorce in the UK. So the principles of sharing and need common to the distribution of matrimonial assets according to English law were applied to the distribution of the couple’s assets.
In this case the couple were both non UK nationals and came from countries where pre and post nuptial agreements are common. It will be interesting to see how the courts deal with pre or post nuptial agreements entered into by UK nationals given that such agreements are far less common here. The Law Commission is currently undertaking a review of the law relating to marital property agreements, considering whether a couple should be able to make a legally binding agreement before or during their marriage or civil partnership about their financial arrangements should the relationship end. The review is to be welcomed as an opportunity to bring much needed clarity to this area of family law.
Tags: divorce, Law Commission, post-nuptial agreements, pre-nuptial agreements