Ask Karen: I'm thinking about a pre-nuptial agreement, but isn't it a bit unromantic?

Once marriage is contemplated entering into, a pre-nuptial agreement should always be considered, particularly where one of you has your own wealth.

A pre-nuptial agreement allows you to ringfence part or all of your existing wealth at the outset of the marriage.

Until very recently, if your marriage broke down under English law, the agreement was not binding on a family court and its terms would not have automatically been upheld or enforced.

This was just one of the facts that a divorce court may have taken into account when looking at the circumstances of your case in dividing the matrimonial assets.

While the court would look at the terms of the pre-nuptial agreement, the weight the court would attach to it would depend on all the other factors of the marriage, particularly if you had children by the time of the divorce.

Other factors included the length of your marriage, your ages, your incomes and earning capacities, both now and in the future, and your financial needs.

This week however, the enforceability of pre-nuptial agreements hit the headlines when German heiress Katrin Radmacher’s financial settlement was considered by the Supreme Court.

Katrin Radmacher’s husband went to the Supreme Court after judges in the Court of Appeal slashed his divorce settlement in line with a pre-nuptial agreement signed by the parties prior to the marriage.

The Supreme Court has said that in the right case such agreements can have decisive and compelling weight and that "it will be natural to infer that parties entering into agreements will intend that effect be given to them".

Despite this the Court still has discretion to waive the terms of a pre-nup Agreement, especially if it is unfair to any children of the family.

Although not yet binding at law, this landmark ruling means that if you both enter into a pre-nuptial agreement freely, are fully informed of all the relevant financial and other information and the implications of the Agreement the Court is likely to uphold it’s terms!

It may seem unromantic, but if you want to protect your assets a pre-nuptial agreement will provide invaluable evidence of what you intend to happen on divorce.

To stand the best chance of being upheld you should be very careful about the circumstances in which it is signed and following the marriage it should be reviewed very regularly, particularly if you have children.

As with anything, you should always seek legal advice.

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