I can get married from the 4 July. When should I sign the pre-nup? BLM's Family Law Team answers

I can get married from the 4 July. When should I sign the pre-nup? BLM's Family Law Team answers

From the 4 July 2020, weddings with up to 30 guests can now take place in England. They had been banned under almost all circumstances since lock-down began on the 23 March.

If you are considering getting married and if you wish to enter into a pre-nuptial (pre-nup) agreement, you need to sign the agreement as far in advance of the wedding date as possible, and ideally at least 28 days before the wedding date, so keep this in mind.

Why do I need to sign the pre-nup agreement as far in advance of the wedding date as possible?

In short, pre-nuptial agreements are not legally binding in England & Wales, but they are a relevant circumstance of a case to be considered by a judge in the event of divorce. In the Supreme Court case of Radmacher v Granatino [2010], the highest court in England & Wales made it clear that a court should give effect to a pre-nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to the agreement.

Amongst other things, this means that the parties entered into the agreement of their own free will, without undue influence or external pressure. It also means that they are able to freely negotiate the terms of the agreement.  One way to prove this is by showing that the pre-nuptial agreement was signed as far in advance of the wedding date as possible.

Where did the 28 days rule come from?

On 27 February 2014, the Law Commission published a report entitled Matrimonial Property, Needs and Agreements. In this report, the Law Commission recommended legislative reform to make pre-nuptial and post-nuptial agreements that are in a prescribed form, and adhere to certain safeguards, legally binding. An agreement that meets the criteria is called a “qualifying nuptial agreement’’.

One such criteria is that the agreement must be made at least 28 days before the wedding or civil partnership ceremony (the timing requirement). The Law Commission stated in its report that ‘‘the risk of pressure influencing the parties’ decisions may at least be limited, even if it cannot be eradicated’’.

While the government has not yet issued its final response to the Law Commission proposals, some of the proposed reforms may become law in due course. Accordingly, it is important to bear in mind the proposals and ensure your pre-nuptial agreement complies with the suggested requirements for a qualifying nuptial agreement as far as possible.

What is a Post-nup /Post nuptial agreement and when should it be considered?

If you are unable to enter into a pre-nuptial agreement at least 28 days before the wedding date, you could instead enter into a post-nuptial agreement after the wedding. Or, you could enter into a pre-nuptial agreement and then confirm your intentions with a post-nuptial agreement thereafter.

How important is a pre-nup for protection?

If a pre-nuptial agreement is drafted properly, it is likely to have a substantial impact on a judge’s decision in many cases and is, therefore, an extremely effective tool in wealth protection.

It is very important to seek specialist independent family law advice from a solicitor to have the best possible chance of your pre-nuptial agreement being upheld.

 

 

Disclaimer: This document does not present a complete or comprehensive statement of the law, nor does it constitute legal advice. It is intended only to highlight issues that may be of interest to customers of BLM. Specialist legal advice should always be sought in any particular case.

Who to contact

Yasmin
Khan-Gunns

Solicitor , London

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