© Copyright Harleston Grapevine 2008

Melanie Pilmer is a Solicitor who specialises in family law and is based at Steeles Law in Diss. Melanie and her team provide advice to the people of Diss & Harleston area. Melanie is able to offer advice on divorce and associated financial matters, disputes between unmarried couples, children issues and the dissolution of civil partnerships.

Here Melanie, gives her thoughts on pre-nuptial agreements:

In the recent high profile case of Charman v Charman the Court of Appeal acknowledged that London is seen as the "divorce capital of the world".

The divorce court has a wide discretion. However recent cases have emphasised the importance of the sharing principle, providing for assets to be shared equally unless there is a good reason to depart from equality.

The uncertainty of the divorce court and frequent big payouts in recent divorces have led to an increase in the demand for pre-nuptial agreements.

In the Charman case a postscript to the judgment suggested that pre-nuptial agreements should become legally binding.

Increasingly individuals use pre-nuptial agreements to· try to have some control over any financial settlement upon divorce and to protect pre-owned or inherited assets.

The current legal position in relation to pre-nuptial agreements

Traditionally the courts were reluctant to take into account agreements that restricted the court's wide ranging powers.

In 2002 the court first allowed a pre-nuptial agreement to affect the outcome of a financial settlement. In that case it was stated that whilst the court was not bound by such an agreement it should look at it and decide what weight should be attached in the circumstances.

Further support has been given to pre-nuptial agreements in cases since 2002 and in the recent case of Crossley v Crossley in which the court essentially said that if a pre-nuptial agreement existed then the burden should be on the party trying to get out of the agreement to say why it should not bind them.

The result is that whilst pre-nuptial agreements are still not legally binding they continue to rise in importance. A carefully drafted agreement with reasonable terms is likely to have a good chance of being upheld.

When to consider a pre-nuptial agreement

¨ Second marriages

¨ Where someone wishes to leave assets to children from previous relationships

¨ Pre-acquired assets you do not want to share e.g. business, inheritance

¨ Remember that if you do not state your intentions in a pre-nuptial agreement it may be much harder to argue that those assets should be ringfenced from the matrimonial pot in a later divorce

NB - Will need amending if you have children during marriage. The Court will retain discretion if party's needs require different division ie. health problems. What you should do to maximise chances of being upheld

¨ Both spouses seek legal advice

Steeles can offer advice regarding pre-nuptial agreements. Many people still don't realise their importance. The numbers of agreements are rising swiftly in London, but those with more modest means should also consider as they may have most to lose.