When marriages end, a major source of stress for many couples is not knowing at the outset what the financial outcome of their divorce will be. As people now marry later and with many people marrying for a second time, many people enter into marriage with assets they’d like to protect should the relationship fail. One possible solution to this lack of clarity is for couples to sign a pre-nuptial agreement, but at the moment pre-nuptial agreements lack legal recognition and this can add to the uncertainty and stress if a relationship ends and they are contested.
Resolution is calling for a change in the law to enable couples to make enforceable agreements about what will happen if they separate.
What is the problem?
Although sorting the finances ranks along with making arrangements for children as one of the biggest worries facing divorcing couples, the present law doesn’t provide clarity and certainty of outcome for couples before, during or after marriage. A growing number of couples are signing pre-nuptial agreements as a way of minimising this uncertainty.
However, English family law has an unclear and inconsistent approach to pre-nuptial agreements. They are not formally recognised as part of any piece of legislation and instead their status has been determined by the outcomes of a number of landmark court cases. This has meant that their status is a “moveable feast”, whereby the latest case law development determines the legal advice that lawyers can give to their clients when they make an agreement or rely on it at an already difficult time.