The news of Hollywood heart throb George Clooney’s engagement to top London human-rights lawyer, Amal Alamuddin, has a lot of tongues wagging. How big is the ring? What will she wear on the wedding day? How did he propose? Will there be a pre-nup?
The last question is probably one of the most important given the report issued by the Law Commission, ‘Matrimonial Property Needs and Agreements’, which recommends the introduction of ‘qualifying nuptial agreements’.
Under the current law in England and Wales, couples with pre-nuptial agreements cannot guarantee the court will uphold the agreement. Currently the court has a wide range of factors to assess the weight that should be attributed to any agreement which include factors such as full financial disclosure, whether the parties entered into the agreement freely without duress or undue influence and with independent legal advice and whether the agreement was unfair from the start, to name a few.
Therefore, until the Law Commission’s recommendations of ‘qualifying nuptial agreements’ becomes law, pre-nuptial agreements, or pre-marital contracts are not legally binding.
If qualifying nuptial agreements become law, married couples and civil partners like George and Amal, would be able to make a binding agreement before they marry, which sets out what will happen in the event of a divorce. They can contain information about assets held before and during the marriage and even about how any future assets should be treated. They can also contain information about arrangements for the children from any relationship, but the courts would be only likely to uphold those agreements if they are in the best interest of the children.
This has been seen more recently in the case of heiress Victoria Luckwell, whose pre-nup was little help to her high-profile divorce earlier this year.
Shelley Chesworth, Partner in the Family team at SAS Daniels LLP, explains: “Despite increasing numbers of cases where pre-nuptial agreements have been upheld by the court, they will not become entirely binding until legislation is introduced to that effect.
“Even then only certain agreements meeting particular standards will qualify as binding. Until that time each case will be judged upon its own merits. If you have assets to preserve, consideration of a prenuptial contract with expert legal advice should be undertaken to ascertain whether it is worthwhile in your circumstances.”
In the case of George and Amal, Shelley concluded: “For an international high-profile couple like George and Amal the law of England and Wales may or may not apply depending on where they live and the jurisdiction in which any divorce proceedings are issued. The approach to pre-nups varies across the world, with some jurisdictions upholding agreements irrespective of considerations such as fairness.”