A pre-marriage Agreement, also known as a Pre-Nuptial Agreement, is generally entered into prior to the marriage of the husband and wife.  Such agreements can also be concluded after marriage and are then none as a Post-Nuptial Agreement.

In recent years such agreements have become popular with couples about to marry who wish to control and safeguard their own financial affairs should the marriage breakdown.

Until recently Pre-Nuptial Agreements were not considered to be legally binding in English Law.  Where a Maintenance Agreement includes a provision purporting to restrict a right to apply to the Court for an order containing financial arrangements the relevant legislation provides that such an Agreement shall be void.  Increasingly, however, the Courts have been prepared to take such Agreements into account as one of the circumstances of a case.  A Judgment delivered in October 2010 by the Supreme Court in the case of Radmacher v. Granatino decided a Pre-Nuptial Agreement should be given decisive and compelling weight.  In that case the couple were French and German and signed a Pre-Nuptial Agreement which was binding under French and German law.  Prior to the breakdown of their marriage the couple had lived in England and Mr Granatino challenged the validity of the Agreement in the English Court.  The Supreme Court dismissed Mr Granatino’s appeal against an earlier decision which found that the Agreement was bounding.  The Court state that the principle to be applied is that a Court should give effect to such Agreement so long as they are freely entered into by each party with a full appreciation of the implications of the Agreement and that it is fair to hold the parties to their Agreement.  The Court went on to say that such Agreements cannot be allowed to prejudice the reasonable requirements of any children of the family but that the autonomy of the individuals entering into the Agreement should also be respected.  In the right case a Pre-Nuptial Agreement can have decisive or compelling weight.

Prior to the Supreme Court Judgment in the Radmacher case, Pre-Nuptial Agreements had been one of the circumstances that the Court would take into consideration when determining a fair outcome and appropriate level of financial settlement.  In the light of this Judgment a number of safeguards must be followed when such Agreements are prepared if the Court is to give weight to what spouses agree.  These include ensuring that there is provision for any children, that both parties has taken independent legal advice on the terms of the Agreement and have fully disclosed their financial circumstances to the other, that the terms of the Agreement should not be unjust and that the Agreement has been concluded not less than 28 days prior to the date of the marriage.

The length of a marriage is also a consideration.  After a long marriage it may be considered unfair to hold parties to an Agreement which they entered into when contemplating an unforeseen future.