Matters involving the family, particularly children, can be emotionally testing. If you are going through a divorce or are currently in the middle of a family law dispute, it is important that you seek legal advice from a solicitor that will be with you from beginning to end.
The family law team at Lupton Fawcett is here to help you throughout this stressful process. Our solicitors have expertise in dealing with a variety of family-related disputes and understand that each situation is different, with each individual requiring personal support and guidance.
If you require assistance with a divorce or want advice on a family dispute, contact Lupton Fawcett today - there are many ways to get in touch. You can either call us on 0333 323 5292, send us an email or fill out our enquiry form to let us know you would like to hear from us.
We provide a range of services to help with a variety of family matters, including:
- Advice for grandparents
- Care proceedings
- Child abduction
- Civil partnerships
- Domestic abuse
- Parental responsibility
- Pre and post-nuptial agreements
- Relationships and wills
- Social services
- Special guardianship orders
- Family Businesses
Members of Resolution
Lupton Fawcett is a proud member of Resolution, an organisation of family solicitors committed to ensuring divorce and family law disputes are resolved amicably and as constructive as possible. To do this, our team follows the Resolution Code of Practice, which aims to alleviate the stress and anxiety that can be involved in these cases.
This includes placing the individual or family at the centre of the case so a settlement is reached collaboratively and with our client’s needs in mind. We aim to settle cases through non-court dispute resolution processes, including mediation, collaborative practice and arbitration, which can often be a more cost-effective solution.
How Lupton Fawcett Can Help
The family team holds the prestigious Quality Mark for our practical and constructive legal advice - proof that our lawyers will provide you with a wealth of advice and support tailored to your case.
Our expert legal services will help you make seemingly complicated legal proceedings easier to understand, while our sensitive approach to the handling of cases offers reassurance that you have come to the right place. We are here to provide one-to-one support for you by listening to your needs, explaining all your options and working with you to achieve the best possible outcome.
Overall, we aim to set your mind at ease, help you focus on the important issues in your life, and make it easier to provide for your children in the future. To help you do this, we offer access to a range of accountants, independent financial advisers, banks and counsellors, so you can easily get back on your feet if a relationship should break down or if you are involved in a family dispute.
We also keep up to date with the most recent changes and developments in family law to ensure we stay ahead of the curve and can ensure our methods are at their pinnacle. To read about the latest developments, take a look at our blog.
How We Can Help With Costs
We are able to offer a number of different pricing options to help you cover our fees as we appreciate this can be an area of concern for clients involved in family disputes. As part of the process, we will fully explain our fees to you, helping you to make a decision on the best payment option for your particular circumstances. Alternative payment solutions available include fixed fees and staged payments. We are also able to refer you to a litigation loan provider.
For more information on costs, please get in touch with our family solicitors.
Contact Us for Help
We provide advice on a wide range of family law matters to clients around Yorkshire from our offices in Leeds, York and Sheffield. For an initial discussion about a family dispute or divorce, get in touch with our family team today by calling 0333 323 5292 ,or by emailing us. Alternatively, fill in our online form, letting us know how we can help and one of our family lawyers will get back to you as soon as possible.
You can also keep up to date with the latest developments via our Blog posts
Frequently Asked Questions (FAQs)
Q. What is the legal status of Pre-Nuptial Agreements?
A. Pre-Nuptial Agreements are not automatically legally binding. The parties to a Pre-Nuptial Agreement cannot override the Court’s discretion to decide how to redistribute their assets and income on an application for financial remedy. When considering an application for financial remedy, the Court must, however, give appropriate weight to a Pre-Nuptial Agreement as a relevant circumstance of the case when considering the factors set out at Section 25 of the Matrimonial Causes Act 1973.
The Court will uphold a Pre-Nuptial Agreement that is freely entered into by both parties with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to uphold the Agreement.
Q. What are the key points of the current law?
A. When considering the role of a Pre-Nuptial Agreement in a financial claim on divorce, the starting point is the relevant legislation, which is the Matrimonial Causes Act 1973. Section 25 of that Act obliges a Judge to consider all the relevant circumstances of the case when deciding how to divide the parties’ finances on a divorce.
No agreement between the parties can override the legislation or prevent the Judge from deciding on the appropriate division of assets on a divorce. This means a Pre-Nuptial Agreement cannot stop a spouse from applying to the Court for financial provision from the other spouse. Any “waiver” of the right to apply to the Court for financial provision in an agreement will not be effective.
The significance of a Pre-Nuptial Agreement is a relevant circumstance of the case, to be weighed by the Judge. A Pre-Nuptial Agreement will have a substantial impact on the Judge’s decision in many cases. The Supreme Court has made clear the Court should give effect to a Nuptial Agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
Q. Must the Agreement be freely entered into?
A. Yes, both parties must enter into the Agreement of their own free will, without any pressure from each other or anyone else. The Agreement is unlikely to be upheld if the Court finds evidence of mistake, duress, undue influence, misrepresentation or unconscionable conduct, such as exploiting a dominant position to secure an unfair advantage.
Both parties should be on an equal footing and freely able to negotiate the terms of the Pre-Nuptial Agreement with one another.
Q. What are the vitiating factors?
Both parties should negotiate the terms of the Pre-Nuptial Agreement as far in advance of the wedding date as possible. Both will need sufficient time to consider the terms and receive legal advice about the effect of those terms so that there is no last-minute pressure on either party as the wedding day approaches.
The Court will take into account individual circumstances such as a party’s emotional state at the time of making the Agreement and factors such as age and maturity and previous experiences of long-term relationships. Such circumstances may inform what pressures a party felt under to sign the Agreement. If a Court considers the parties entering into a Pre-Nuptial Agreement are mature, with a wealth of life experience and knowledgeable in relation to financial matters, this will enhance the weight to be attributed to the Agreement. Conversely, if the parties are young, immature and do not have a wealth of life experience, that may count against the Pre-Nuptial Agreement being given decisive weight.
The Court may also consider whether the marriage would have gone ahead in the absence of a Pre-Nuptial Agreement. If a party would have refused to proceed with the wedding, that may reinforce its weight.
Q. Do the parties need to have a full appreciation of the implications of the Agreement
A. Yes, both parties should be in possession of all the information material to their decision to sign the Pre-Nuptial Agreement before signing it, so that they fully understand the implications of the Agreement.
Both parties should both receive specialist family law advice.
Both parties should each provide financial disclosure to be included in the Pre-Nuptial Agreement, setting out their assets, income and potential assets such as inheritances and any interests under discretionary trusts. Once the parties have a full picture of each other’s financial situation, they have a context in which to negotiate the terms of the Pre-Nuptial Agreement.
The Pre-Nuptial Agreement should be intended to determine the financial consequences of any future breakdown of the marriage. Whilst Pre-Nuptial Agreements are not currently legally binding, both parties should expect to be held to its terms.
Q. Does the Agreement have to be fair to hold the parties to its terms?
A. The Supreme Court has provided the following guidance for assessing fairness:
- It is not fair for a Pre-Nuptial Agreement to prejudice the reasonable requirements of any children of the family. If, therefore, the parties have any children in the future, it would be advisable to reconsider the terms of the Pre-Nuptial Agreement to ensure the child[ren] receive[s] adequate financial provision under the terms of the Agreement.
- The autonomy of adults should be respected: it is “paternalistic” and “patronising” to override the terms of an Agreement simply on the basis that the Court “knows best”.
- There is nothing inherently unfair about a Pre-Nuptial Agreement that seeks to ring-fence what is often referred to as “non-matrimonial property”. Non-matrimonial property comprises property owned by one party before the marriage or assets a party receives from a third party during the marriage, through lifetime gift or inheritance. The Supreme Court judgment sanctions the use of a Pre-Nuptial Agreement to shield family wealth and assets acquired before the marriage.
- The longer a marriage lasts following a Pre-Nuptial Agreement being signed, the greater chance it may not be fair to hold the parties to its terms because of unforeseen changes in circumstances. This is more relevant to young parties starting married life with few assets and less relevant where significant assets have already been accrued before the marriage.
- If the effect of the Pre-Nuptial Agreement would be to leave one party with less than his or her needs, while the other party is comfortably provided for, this is likely to be unfair. Needs are based on the amount a party needs to spend to maintain a standard of living not too dissimilar from that enjoyed during the marriage.
- If one party has a valid argument for an element of compensation (for loss of earning power following a joint decision that one spouse should give up a career to care for the family) then a Pre-Nuptial Agreement which ignores this compensation is likely to be unfair.
- If needs and compensation are adequately covered in the provision offered in the Pre-Nuptial Agreement, then further sharing of the assets may be prohibited. This limits a spouse’s ability to claim an interest in a non-matrimonial property, such as inheritances, gifts and property owned by the other spouse before the marriage.
Q. What is the effect of the Supreme Court test?
A. As the law currently stands, Pre-Nuptial Agreements are almost as good as binding, provided they are fundamentally fair.
However, as emphasised above, even if a Pre-Nuptial Agreement is given decisive weight, the Court still has the power to make financial awards on divorce. A Pre-Nuptial Agreement will be only one of the factors considered when the Court is exercising its discretion to deal with the parties’ finances. You should, however, expect to be held to its terms.
Q. What are the Law Commission’s Recommendations?
A. The Law Commission has published a report entitled ‘Matrimonial Property, Needs and Agreements’. In this report, the Law Commission recommends legislative reform to make Nuptial Agreements that are in a prescribed form, and adhere to certain safeguards, legally binding. A Nuptial Agreement that meets the criteria is called a “qualifying Nuptial Agreement”.
Qualifying Nuptial Agreements would prevent the Court from making financial Orders on divorce that are inconsistent with the terms of the Nuptial Agreement, unless an Order needed to be made to meet one of the parties’ financial needs, or for the benefit of a child of the family. Nuptial Agreements that do not adhere to the criteria would continue to be treated as a “relevant factor” of the case by a Judge deciding what financial Orders to make on divorce.
A qualifying Nuptial Agreement must meet the following criteria:
- It must be contractually valid (the validity requirement). There must be no factors present that cast doubt on the free will of the parties to the Agreement or on the level of information a party had when entering the contract. Any evidence of mistake, misrepresentation, duress or undue influence may cause the Agreement to fail.
- It must be validly executed as a deed and contain a “relevant statement” signed by both parties confirming that they understand the Agreement is a qualifying Nuptial Agreement that will remove the Court’s discretion to make financial Orders on divorce except to meet financial needs (the formation requirement).
- It must not have been made within the 28 days before the wedding (the timing requirement).
- Both parties to the Agreement must have received disclosure of material information about the other party’s financial situation when entering into the agreement (the disclosure requirement).
- Both parties must have received legal advice at the time they entered into the Agreement (the advice requirement).
- It must not prejudice any children. If the Agreement makes insufficient financial provision for children, it will be set aside by the Court.
- Both parties’ needs must be met. As explained above, need is measured with reference to a standard of living during the marriage. Provision for needs is not limited to an income stream; it includes capital provision and the long-term provision of a home. The possibility of ongoing financial provision for a party caring for children is important. An Agreement that results in a party receiving nothing or very little would not be upheld by the Court.
Accordingly, it is important to bear in mind the proposals and sensible to ensure a Pre-Nuptial Agreement complies with the suggested requirements for a qualifying Nuptial Agreement as far as possible.
Complying with these requirements will mean that the Pre-Nuptial Agreement has the best chance of being legally binding in the future and will provide both parties with as much clarity and certainty as possible regarding the division of their finances if the marriage should break down in the future.
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