As such prenuptial agreements have been on the increase where couples wish to be as honest as possible with each other before they marry. A prenuptial agreement can help couples begin their marriage with an honest disclosure of their respective financial positions making each other fully aware of their circumstances and what is to happen in the event of a marital breakdown.
The main difficulty with a prenuptial agreement is that it may not be recognised by the Courts and at present are not automatically recognised. Prenuptial agreements are presently not illegal nor do they have legal backing. The possibility of such agreements is envisaged in the Family Law Legislation, however, the Courts can vary them if they so wish and as such have a wide discretion. Whilst a prenuptial agreement does not bind a Court in an event of legal proceedings issuing, it is our opinion that even if the agreement is not binding it will be very persuasive, if it can be shown that the agreement is fair and reasonable and was entered into by both parties openly and with the benefit of independent legal advice by the parties. Furthermore, it will provide the Courts with the intention of the Parties in the event of a marital breakdown. In order for a prenuptial agreement to have a persuasive value with the Court it is extremely important that there is full and frank financial disclosure by both Parties. The prenuptial agreement must be completed by both Parties in direct anticipation of the forthcoming marriage. Furthermore, the division of assets referred to in the agreement must be reasonable in the circumstances and should be subject to review in the event of major changes and circumstances.
As legislation currently stands, the Court will not grant a divorce unless it is satisfied that full and proper provision has been made to all parties and in this regard if a prenuptial agreement can be shown to constitute a full, fair and proper provision for both Parties then it may be accepted by a Court. In the wake of the economic recession the financial issues arising from marital breakdown are becoming more and more prominent. People are going to greater lengths to preserve their wealth. People who are going into a second marriage may consider prenuptial agreements since quite often they are bringing property into the marriage that was acquired previously and more often than not that there are children from a previous marriage. People are also marrying for the first time but have children from previous relationships and also we have those for whom have a significant business/property interest and have acquired or are likely to acquire significant wealth. The most important thing about the prenuptial agreement is that the agreement may offer peace of mind to both parties before entering into the marriage.
In the UK the Supreme Court ruled in a case concerning a wealthy German heiress (Katrin Radmacher) that prenuptial agreements have “decisive weight” in English divorce cases. A study group on prenuptial agreement was established in Ireland in December 2006, who determined that there should be provision within the Family Law Act 1995 and the Family Law Divorce Act 1996 to ensure the Courts give regard to existing prenuptial agreements when making ancillary relief. The Group report also made recommendations of formalities necessary for the proper making of prenuptial agreements so that the Parties making such agreements would be fully informed and protected. As such, the agreement should be in written form, the Parties should each receive separate legal advice, each of the Parties shall have made full and frank disclosure of all relative financial information and more particularly the agreement should be executed not less than 28 days before the marriage.