'Do you take this binding pre-nup, to have and hold to, when divorce do you part?'

Published on 22/10/2010 12:24

When planning the dream wedding, dresses, cakes and flowers are traditionally front of mind for the happy couple.

However, couples are increasingly likely to consider a far less romantic element - a pre-nuptial agreement.

Commonly thought to be reserve of the rich and famous, "pre-nups" are becoming increasingly common among couples who want to decide how to divide or protect assets should the marriage break down.

Effectively, the couple are entering into a contract in advance of their marriage, agreeing that should the marriage end, assets will be divided or ring-fenced according to the pre-nup.

The recent Radmacher v Granatino case - in which the Supreme Court upheld a pre-nuptial agreement despite the husband's plea that this was to his severe financial disadvantage - has catapulted the issue of pre-nuptial agreements into public discussion.

This was a significant ruling for the English courts, where pre-nups have until now carried little weight. Instead, courts have used their powers decide how financial issues should be decided in family cases, irrespective of the agreements parties may have reached outside the courtroom.

This was considered a test case of how binding pre-nups are in England and Wales. In upholding the agreement, the judges said the ruling had been reached because the parties had intended the agreement to be implemented should the marriage end.

So will this ruling open the floodgates for pre-nups south of the Border? It is highly unlikely courts will uphold every agreement. Rather, they will consider the agreements case by case.

The Law Commission is set to report in 2012 on whether a change in the law should be made to ensure pre-nups are fully enforceable.

Scotland's treatment of pre-nups differs significantly. Here, such agreements are believed to be binding but not yet fully tested in court, so legal advice should always be sought before such a contract is entered into.

Before the Scottish courts will consider upholding a pre-nup agreement, they must be certain three conditions have been met: that the agreement is fair and reasonable; that both parties have had the opportunity to receive independent legal advice; and that no improper pressure was exerted on either party to sign the contract. Despite this uncomplicated approach, there are conditions on jurisdiction, requiring parties in such agreements in Scotland should reside here, or at least have a strong link to the country.

Scottish family law in this area has evolved over many years and despite a rise in pre-nups, the courts are yet to consider a case such as Radmacher. While this case has no direct influence on the standing of pre-nups in Scotland, its high profile is likely to lead couples who would usually not consider such an agreement to investigate the possibility.

And while traditionalists may despair at this businesslike and objective approach to marriage, a pre-nup could ensure costly litigation and financial wrangling is avoided should the marriage collapse further down the line.

l Carolyn MacBride is a senior associate and specialist in family law at HBJ Gateley Wareing