How Walker Foster Helped

At Walker Foster, we recognise that no two matters are identical when it comes to family law, and that it is important for the solicitor to listen carefully to the client and to identify their personal objectives, while taking into consideration the dynamics of their relationship (whether that is with a spouse-to-be, or a soon-to-be ex-spouse). This enables the solicitor to tailor the advice to that client’s particular set of circumstances.

In this case, it was important to ensure from the first meeting that there was a high degree of trust and financial transparency between the couple, and a genuine desire from them both to draw up an agreement that was fair and would generously meet both parties’ needs going forward. This may be regarded by many as un-romantic, but it could be argued that starting the relationship with a financial plan provides security for both parties, brings peace of mind, and establishes trust and transparency from the start.

As prenuptial agreements are not yet legally binding in England through statute law, certain prerequisites would need to be met for such an agreement to be upheld by the court, as set out in a landmark case decided in the Supreme Court in 2010. Therefore, it was vital that all of those prerequisites be addressed. These included:

• Ensuring that the agreement was finalised and signed by both parties, with the fiancée having obtained independent legal advice, at least 28 days before the date of the wedding.
• Drafting a fair agreement that made reasonable and generous provision for the wife-to-be and any children of the family
• Making sure there was no suggestion of duress, or that the marriage would not take place without it.

Finally, the client needed to be advised on the full range of powers open to the court in determining any future financial application upon the breakdown of the marriage. It was important to note that a prenuptial agreement does not currently oust the jurisdiction of the court to determine any such application fairly, but is a factor that the court will examine first and foremost in deciding whether to uphold it fully or in part, taking into consideration the circumstances of the parties at the time of the application.

Among the various statutory factors the court will consider (with or without a pre- or post-nuptial agreement) is the length of the marriage, and this includes any premarital cohabitation, which, if 'seamless', is added to the length of the marriage. This is a little-known fact, and important in the context of considering marriage and prenuptial agreements.