Does no-fault divorce affect whether a couple should consider a pre-nuptial agreement?

With the recent changes to ‘no-fault’ divorce and dissolution of civil partnerships, many are now questioning whether the protections afforded by having a pre-nuptial agreement (or indeed a post-nuptial agreement made after the marriage/civil partnership) are still required. In short, the answer is yes.

Whilst the recent changes to no-fault divorce fundamentally change how couples end their marriages/civil partnerships, nothing within these changes affect how a couple’s financial circumstances should be dealt with. When it comes to considering financial matters, the backdrop for any couple is what the Family Court would order if they do not agree. The Family Court will take into account all of the circumstances of a case, including whether or not the couple have entered into a nuptial agreement. Where they have, unless it can be shown that one of them was forced into such an agreement or the terms of it would leave them in a position of need, the Family Court will respect the autonomy of the couple and uphold the terms of the same.

In light of this, for many people the best way to ensure that financial matters are addressed as they would wish, is to ensure that they have a nuptial agreement in place, setting out how assets, particularly those owned before the relationship, are to be dealt with. This is critical not only for those who have concerns about the protection of traditional family wealth, but also for those who marry later in life who may have accumulated a strong financial position and those who are re-marrying and want to ensure that certain assets are protected for children from their previous relationships.

Therefore, whilst the landmark changes to no-fault divorce and dissolution of civil partnerships have rightly been heralded as a sea change in how matters are dealt with on relationship breakdown, this is limited to the legal process of obtaining the document that ends that marriage or civil partnership. It has not altered how the associated family finances will be considered or indeed what the arrangements for children should be.

If you have any concerns about whether a nuptial agreement would be sensible in your situation, please do contact our specialist family team who will help, guide and advise you.