pre-nuptial contracts and pre-registration agreements

First, the stats! Roughly 2 in 5 marriages now end in divorce and the figures are likely to be much the same for civil partnerships. It is perhaps fair to say that most people entering into a marriage or civil partnership do so believing that their relationship is strong and will stand the test of time and that their love is so great that there is no obstacle that they cannot surmount together. That of course is wonderful but is it realistic?

Usually it is only when their relationship is over and the couple are battling over the family home, the other financial assets and any children that family lawyers are instructed.

Essentially a pre-nuptial contract or pre-registration agreement is an agreement voluntarily entered into to achieve as far as possible on separation/divorce or dissolution a fair division of the assets.  It can deal with where each party will live after the divorce or dissolution and what share of the assets amassed during the marriage/civil partnership each will have.  It can also be used to protect and preserve personal assets that each owned prior to tying the knot.  Certainly now with couples marrying or entering into civil partnerships later in life there may be significant sums of money and other assets that each has in their own right before getting together which they would want to retain perhaps for children from a former relationship or for other family members.

In some jurisdictions (notably some States in the US) pre-nuptial agreements are legally binding provided of course that both parties obtained independent legal advice on the terms of the agreement before signing and no undue influence or duress took place.
Such agreements are not legally binding in the English Courts, but as a result of the Supreme Court decision in Radmacher v. Granatino, they are likely to be upheld if their implementation would be fair. It would be for the weaker financial partner to establish that implementation of the agreement as executed would not be fair in the circumstances, particularly with regard to significant changes from the date of signing of the agreement such as the birth or adoption of any child(ren) and the provision for housing for them and their primary carer. Previously, such agreements were merely persuasive and were taken into account (as one of a number of other relevant factors) by Judges when determining what would be fair and reasonable having regard to the appropriate level of financial provision if any from one to the other and of the division of any capital assets should an application be made by one spouse or civil partner for financial provision from the other in the course of divorce or dissolution proceedings.

For the Court to treat these agreements as binding in the absence of persuasive arguments that to do so would be unfair , the following requirements should be met, namely:-

1. The parties to the agreement must intend to be legally bound by the terms of it.
2. Before signing the agreement the parties should have the benefit of (or at least the opportunity to obtain) independent legal advice on the terms of the agreement.
3. The parties to the agreement must understand what it is that they are agreeing to (and what rights they are potentially giving up).
4. The parties must give full disclosure of all income and capital assets that each has and is therefore bringing into the marriage/civil partnership.
5. It must be freely and voluntarily entered into and therefore there must be no evidence of any pressure or undue influence having been exerted on either party to sign the agreement (and in this regard the date of the signing of the agreement may be crucial as if it is signed on the eve of the ceremony and is clearly disadvantageous to one party the Court may be concerned about any pressure felt by the disadvantaged party to sign). 
6. Preferably it should be signed at least 3-4 weeks before the ceremony (although such agreements can be signed post marriage as well).