Across all areas of legal work we advise clients to have written agreements about the formation, ground rules and termination of their agreements from the outset when parties are likely to be more amicable in resolving in an appropriate way difficult issues which may crop up. The agreements may be Shareholder Agreements, Joint Venture Agreements, Employment or Consultancy Contracts or Service Agreements, Arbitration or Mediation Agreements and closer to my area of expertise Co-habitation Agreements.
Often these agreements may be between friends, family or partners where they can be particularly important because of the greater scope for other disagreements and intense emotion to cause deadlock or make any break up extremely difficult and expensive.
However, in the area of pre-nuptial agreements where prior agreement would be worth a lot in terms of setting expectations during the relationship, reducing damage to children in any break down of the marriage and agreeing fair and sensible arrangements in the unhappy event of a separation or divorce the agreement is not legally binding.
It may well be considered by the court and we are often asked to draft these agreements which will save clients not only money but also reduce the stress of divorce. The pre-nuptial agreement cannot stop the court deciding on issues that arise and in particular any issues relating to children, however case law has developed meaning the Court places considerable weight on a pre or post-nuptial agreement if is has been prepared properly.
It is likely that if pre-nuptial agreements do become legally binding that will be subject to the court’s objective of ensuring that in making arrangements relating to children the interests of the children are the paramount consideration.
Baroness Deech is seeking to make pre-nuptial agreements legally binding which if she succeeds will be a long overdue benefit for many.
Earlier this year, the Law Commission proposed that prenuptial agreements, which allow couples to draft their own divorce settlements, become legally binding. Divorce lawyers backed the plans, welcoming the prospect of such agreements becoming commonplace rather than remaining the preserve of a wealthy elite. But pro-marriage organisations have expressed concern that this could lead to more divorces and the end of the romantic idea of marriage.