Strictly speaking, PNAs remain unenforceable as a matter of English Law. However, since the landmark case of Radmacher v Granatino in 2010, the case law demonstrates that, if properly drafted and subject to a number of what are now well-established criteria, the Court is likely to uphold such agreements. Increasingly, our experience is that clients wish to exercise their autonomy to provide for a financial outcome in the event of their separation, rather than leaving this to be determined by the Court.
There are many reasons why it may be appropriate to enter into a PNA. They include, but are not limited to:
- The protection of inherited wealth or family wealth that is designed to be passed down through generations;
- The protection of business interests/property or interests/property arising under a trust; or
- The securing, for the economically weaker party, their reasonable future financial needs.
The English Court has a very broad discretion when dealing with the division of assets on divorce and a PNA can provide for certainty of outcome and potentially avoid the incurring of significant legal costs in the event of contested proceedings.
Our team is able to guide clients through the process of negotiating and drafting a bespoke PNA that meets their particular circumstances. Clients are advised to give thought to the terms of a PNA well in advance of their marriage. This provides for peace of mind and the ability to focus upon the celebration of their marriage.
We offer complete discretion and confidentiality throughout the process and have extensive experience in acting for both domestic and international clients who wish to protect their assets whilst entering into marriage.
Protecting family assets may require the involvement of experts across the firm and we regularly work with colleagues in our Tax and Trusts teams to provide clients with the bespoke service they require. If your circumstances have an international dimension, we are happy to work with your overseas advisers or, alternatively, we can recommend a foreign law expert from our extensive contacts overseas.
We understand that the concept of a PNA may be difficult to discuss with your partner but in the long run it can reduce the stress and legal costs involved if you were to separate. Our team can discuss every aspect of the process with you and negotiate on your behalf. We recognise the need for negotiations to be focused, constructive and handled sensitively: we are here to guide you every step of the way.
With top ratings in Chambers UK, Chambers HNW and The Legal 500 UK guides, the Family Team is recognised as having a great pedigree in high-end pre-nuptial and post-nuptial agreements and frequently advising in some of the most high-value and high-profile cases in the market.
The Family Team at Payne Hicks Beach is ranked in Chambers HNW 2023. The directory writes that “Payne Hicks Beach has a highly esteemed family law department which regularly handles high-value and sophisticated matters.” Testimonials include “They are uniformly first rate, from the technical ability of more junior team members with day to day responsibility on a case, to the deep experience and strategic thinking offered by the partners and more senior associates” and “PHB are absolutely excellent. They are all extremely competent, and can handle really big cases without being fazed by anything.” With rankings of many years in Chambers HNW, testimonials include “They’re as good as you’ll find; they’re a class act,” says a source, explaining: “They have a lot of depth to their practice. They all have great experience and are very good to deal with.” Another comments: “They are a fantastic group of lawyers. They provide excellent advice to clients, and they have strong expertise in a range of areas. They really invest in their clients; it’s a real pleasure dealing with them.”
The Legal 500 UK 2023 describes Payne Hicks Beach LLP as a “top notch firm that does A list work for the most influential, successful and high profile clients.” The law directory expands to say that “the department is ‘outstanding’ and garners praise for its specialist advice on the full spectrum of complex family law issues often with an international dimension for high-profile individuals, entrepreneurs, UHNWs and others including members of international Royalty” and recognises that the team “is frequently instructed in cases that go to the Supreme Court and the Court of Appeal.” “Overall it is a ‘class act with a team of great lawyers who know exactly how to run the big, difficult litigation but never lose sight of what the client wants’.” One source comments: “The PHB family team has exceptional experience of the most complex international family law disputes. Very few other firms have this level of experience. Hand-in-hand with this the firm delivers a very personal service, giving clients the assurance that both their case and their welfare are being cared for with utmost attention.”
A post nuptial agreement is an agreement signed during the marriage by which a couple can reach a consensus on how assets are to be treated in the event of a divorce. Like pre-nuptial agreements, they are not legally binding but if prepared properly a court is likely to give weight to the agreement in the event of the marriage breaking down.
Long regarded as the preserve of the wealthy, pre-nuptial agreements are increasingly popular with individuals from all walks of life and in particular where one or both parties have assets that they are bringing in to the marriage that they want to keep separate. We can consider your particular circumstances and advise you on the most suitable type of agreement for you.
Strictly speaking, pre-nuptial agreements are not legally enforceable. However, since the Supreme Court ruling in the 2010 case of Radmacher v Granatino, provided that an agreement has been properly formulated and is fair then it is likely to be given decisive weight by the court.
An English pre-nuptial agreement can deal with all assets worldwide but there will be special considerations that need to be taken into account if foreign jurisdictions are involved. It may be necessary to enter into a mirror agreement in another jurisdiction and we can assist you with obtaining advice in the foreign country.
A cohabitation agreement sets out what is to happen to assets in the event that an unmarried couple living together should separate. It is important to remember that in the UK there is no such concept as a “common law marriage” and a cohabitation agreement can offer both parties certainty and protect their respective positions. Provided that they are drawn up correctly and properly executed, a cohabitation agreement can be legally binding.