Pre-nups: How To Draft A Pre-nup In The Twilight Zone

At the Resolution National Conference 2015, the workshop on pre-nups was one of the more popular choices by far – nearly a quarter of delegates chose to attend. Perhaps this reflected a desire for stronger guidance on the drafting pre-nups during the twilight zone between Radmacher v Granatino [2010] UKSC 42 and the much awaited government response to the Law Commission’s consultation paper on pre-nups.

The panel of experts were top family lawyers with years of experience of drafting, contesting and defending pre-nups in divorce cases, including His Honour Judge Philip Waller CBE, Nicholas Cusworth QC (1 Hare Court), Philip Marshall QC, (1 King’s Bench Walk), William Longrigg (Charles Russell Speechlys) and James Carroll (Russell-Cooke).

Emma Wilkins of Practical Family Law set out the law as it currently stands following Radmacher v Granatino [2010]. The court should give effect to a nuptial agreement if it was freely entered into by each party; each party fully appreciated its implications when entering it; and it would be fair in the circumstances prevailing to uphold it. However, a nuptial agreement cannot oust the court’s jurisdiction and a judge’s broad discretion to apply the factors set out at section 25 of the Matrimonial Causes Act 1973.

However she noted that the Radmacher test is subjective and so uncertain and in order to achieve certainty for clients, nuptial agreements would need to exclude the discretionary jurisdiction of the court. The Law Commission had suggested ways of removing the uncertainty through the adoption of QNAs (qualifying nuptial agreements) but the proposals were awaiting a response from the next government. The QNAs have strict criteria including contractual validity, full financial disclosure and a deadline of 28 days before any marriage.

So how to draft a prenup in the meantime? It was fascinating listening to the range of advice from ‘drafting a prenup as a qualifying QNA in order to future-proof it’ to advice from the bench that practitioners can only draft the contract according to current legislation – they would not get much sympathy for a document drafted with only a proposed Bill in mind! Nor were review clauses in favour with most of the panel on the basis that most people do not want to review a pre-nup when the marriage is going well and it weakens the original document.

Some of the panel wanted to include financial and non-financial provision for children yet to be born in order to make it a comprehensive document; others thought commitments to non-financial provision were best left to shared parenting plans rather than legal instruments!

Other elements of contract law pervaded the debate – what to do if duress could be involved; handling prenups for couples working and living for a time in other jurisdictions; how to enforce agreements in other jurisdictions. There was even a suggestion that arbitration clauses be included in pre-nups.

After an hour and a half of debate on pre-nups I truly felt that had just attended a revision session on Contract Law!