Before you say I do...
For those who are taking the leap into marriage they do so with caution and planning. With the increase in divorces in their parents’ generation, the millennials appear to approach marriage in a different way to generations before. This is likely to be because it is more common now than ever for women to have similar financial footing to their partners and often both parties are bringing assets or established income streams into the marriage at the outset. Gone are the days when people started their married lives with a toaster and a cutlery set from their wedding list. The millennials are getting married not because that is what is expected but because they want to. However, sensibly, they also want to make sure they are protected if it all goes wrong.
For many years the pre-nuptial agreement was something we heard about in American TV dramas about the rich or for famous people who were protecting their wealth from opportunists. For a long time, the Courts in the UK and Jersey did not consider a pre-nuptial agreement to be binding. This is not the case now. The pre-nuptial agreement can be utilised by many and more and more of us are taking this up. It is not designed for the wealthy alone.
The English case of Radmacher v Granatino  changed how the Court considered pre-nuptial agreements and this has had a knock-on effect of making them more accessible to all of us. As Jersey follows the English Courts closely, they too, have followed this approach.
The Radmacher case confirmed that pre-nuptial agreements are not binding however they should be given appropriate weight when considering the distribution of assets upon separation. Provided a number of factors are met the Court should consider the pre-nuptial agreement and attach weight to it. So, what are those factors that are so important to the Court?
The agreement must be freely entered into. It must be entered into on the person’s own free will, without undue influence or pressure of any kind. The Court will consider a party’s emotional state at the time of the making of the agreement together with other factors such as the age and maturity of the party.
Parties must have a full appreciation and understanding of the implications of the agreement. There should be full financial disclosure of assets and income if possible and both parties should intend that this agreement will come into force at the end of the marriage.
Upon separation, it must be fair to hold the parties to their agreement in all the circumstances. The Court can set aside the pre-nuptial agreement, if at separation, having consideration to the circumstances on separation, it is no longer felt to be fair. The pre-nuptial agreement does not have the power to oust the jurisdiction of the Court to consider the Section 25 criteria of the Matrimonial Causes Act 1973 when looking at the distribution of assets on divorce.
There are also strict rules to ensure that a pre-nuptial agreement is valid. These include;
The agreement must be contractually valid
The agreement must be executed as a deed
The agreement must not be made within 28 days immediately before the wedding
Both parties must have received disclosure of material information prior to entering the agreement by way of financial disclosure.
Both parties must have received legal advice at the time they entered into the agreement.
The benefits of a pre-nuptial agreement for parties is that, if the worst is to happen, it avoids lengthy and potentially costly legal dispute about the division of assets. It also ensures that the parties are aware how their finances are to be dealt with during the marriage and if it happens, after separation.
It is notable however that a pre-nuptial agreement is very much a working document. It must be reviewed when there are significant changes such as the birth of a child and often this can be forgotten. It is not possible for a pre-nuptial agreement to put in future agreements about children that have not yet been born. If you are considering entering into a pre-nuptial agreement, do not just put it in your drawer, never to be looked at again. Much like a Will, this should be reviewed from time to time to make sure it is still up to date.
The millennials are not alone in considering the benefits of a pre-nuptial agreement as many people who are embarking on a second marriage also consider the benefits. No, it is not romantic and for some it is considered something of an offense. In reality, nothing sensible is particularly romantic. Taking out insurance for life’s unfortunate events is also an uncomfortable thought but a process we do nonetheless for protection. Similarly, the pre-nuptial agreement can offer certainty and comfort to someone who wishes to protect what they have whilst ensuring that if the marriage does not survive there will be less conflict around finances at a time which is already marred with pain and emotional discord. Much like other insurance policies, we hope you will never need to use it, but if you do, you will be grateful for it.