News:

THE DOOR CREAKS OPEN SLOWLY

For many years, the English Judiciary have been resistant to the concept of Pre Nuptual Agreements. These consist of agreements made between a man and a woman who are contemplating marriage. Their purpose is to anticipate and regulate the outcome of their financial arrangements in the event that the subsequent marriage should fail.

Such agreements are commonplace in a number of European countries and “de rigeur” in the USA.

They have been described in the past in England as “contrary to public policy” and “an attempt to usurp the wide discretion…” – granted to the Judiciary by the Matrimonial Causes Act 1973 (which although now almost 35 years of age, still regulates financial issues on marriage breakdown).

More recently there have been indications that the law might be willing to recognise that such an agreement may have some weight.

As with all things legal, progress is slow but after what might be termed the landmark decision of Rodger Haywood Smith QC in K v K and the guidelines he then set out for recognition of a Pre Nuptual Agreement which could help to determine the outcome of financial claims, subsequent decisions have indicated that in the right circumstances, Courts would be willing to attach a good deal of weight to the content of a Pre Nuptual Agreement. Such agreements are still not binding however – as there are in other jurisdictions.

This area of law developed slightly further in December 2007 when the Court of Appeal in Crossley v Crossley approved the approach of Mr Justice Bennett when he directed:-

(a) That the parties to a Pre Nuptual Agreement did not have to file supporting documents to their Forms E in matrimonial financial proceedings.

(b) That Questionnaires should not be raised.

(c) That the wife’s Solicitor should set out in a letter her position in relation to an allegation by her that the husband had not provided full disclosure at the time of the agreement.

(d) That the husband should respond to the wife’s position in his Form E.

(e) That the wife should show cause why the terms of the Pre Nuptual Agreement should not prevail.

For those who support the concept of Pre Nuptual Agreements, the decision is very welcome and is another step towards their recognition as an important tool in early cost effective resolution of matrimonial financial disputes.

January 2008

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