Pre-nuptial Agreements and Same-sex Marriage

Gay people often face challenging attitudes from within their own families, particularly when it comes to their assets when a gay person finds a life partner and intends to get married. 

Concerns are frequently expressed if there is a disparity between the age and wealth of the engaged couple, for example, a person of mature years who has accumulated significant wealth and assets, often partly through inheritance, announces their in intention to marry a considerably younger person who has yet to achieve the same level of financial success. Friends and relatives may express uneasiness believing that if the marriage proves to be short-lived the division of assets could present difficulties for the wealthier individual.

Such concerns are not without some validity and the precaution of drawing up a pre-nuptial agreement seems to be a wise move.  

Daniel Theron, a partner, points out “a pre-nuptial agreement should be considered carefully with the advice of a family lawyer. Each engaged couple has an entirely different set of circumstances and a pre-nuptial agreement should match their particular needs.” He further commented “a prenuptial agreement should be drawn up with the advice and guidance of an experienced family lawyer, it would be very unwise to attempt to draft an agreement using a template downloaded from the internet.  No two couples have the same obligations and needs.”

The objective of a pre-nuptial agreement is to provide clarity and transparency from the onset, as well as protecting certain assets such as a pre-existing asset.  Also, such an agreement may avoid a long-drawn-out legal battle should the couple decide to separate.   A pre-nuptial agreement will define the matrimonial property, generally, assets acquired during the course of a marriage that are jointly owned, such as the matrimonial home, from the non-matrimonial property, generally but not always, assets owned prior to the marriage, inherited assets or gifts.  

Whilst pre-nuptial agreements were not recognised as legally enforceable in England & Wales, contrary to other jurisdictions across the world, following the Supreme Court ruling on the case of Radmacher –v- Granatino  means that if an agreement is freely entered into, with all information available to both parties and in the absence of pressure, such agreements should be upheld by the Court, unless it would be unfair to do so.

The Law Commission’s Report published February 2014 This is a series of recommendations that would abolish the common law rule that invalidates agreements contemplating future separation. This has not been made into law so Radmacher- v- Granatino is the leading case. However, it is likely that this will happen in the future, but the Family Court is slow and adverse to change.

A draft Nuptial Agreements Bill, which would, in turn, introduce qualifying nuptial agreements in England and Wales that satisfy the criteria required for a qualifying pre-nuptial agreement should be recognised.

The requirements for a qualifying pre-nuptial agreement as follows:

  • The agreement must be entered into freely, with no suggestion of coercion. 
  • The agreement must be contractually valid.
  • The agreement must be executed both validly and as a deed, which must include what is deemed to be a relevant statement.
  • Both parties must fully understand the consequences of the agreement.
  • The agreement must be fair.
  • The agreement must have been made at least 28 days before the wedding.
  • There should be disclosure to both parties about the wider financial circumstances of each party.
  • Both parties must have received legal advice.
  • It should not prejudice the financial needs of any children of the marriage.
  • Both parties’ needs must be met, one party must not be left in need.

This area or law is changing and it is quite possible that the use of pre-nuptial agreements will become commonplace in years to come.

When considering a pre-nuptial agreement, the court applies the Matrimonial Causes Act 1973 sec. 25  which is applicable to financial claims on divorce and requires the review of all relevant factors. This gives the court a large amount of discretion to include many factors in a financial order.

The lawyers in Gay Lawyers (the LGBT division of Giambrone) family law team strongly recommend considering commissioning a pre-nuptial agreement prior to marriage to provide complete peace of mind to both parties. 

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