For many years, the Courts in Jersey did not consider a pre-nuptial agreement was worth the paper it was written on. However, the English case of Radmacher v Granatino  changed how the Court considered pre-nuptial agreements and Jersey has followed suit. The case confirmed that pre-nuptial agreements are not binding however they should be given appropriate weight when considering the distribution of assets upon separation. In order to decide the appropriate weight to be given the Court will consider various factors including:
- The agreement must be freely entered into without pressure or influence. Consideration will also be given to the parties’ emotional state at the time.
- Parties must have a full understanding of the implications of the agreement. There should be full financial disclosure of assets and income if possible and both parties should intend that this agreement will come into force at the end of the marriage.
- Upon separation, it must be fair to hold the parties to their agreement in all the circumstances. The Court can set aside the pre-nuptial agreement, if at separation, having consideration to the circumstances on separation, it is no longer felt to be fair. The pre-nuptial agreement does not have the power to oust the jurisdiction of the Court to consider the Section 25 criteria of the Matrimonial Causes Act 1973 when looking at the distribution of assets on divorce.
There are also strict rules to ensure that a pre-nuptial agreement is formally valid.
The benefits of a pre-nuptial agreement for parties is that, if the worst is to happen, it avoids lengthy and potentially costly legal dispute about the division of assets. Taking out insurance for life’s unfortunate events is an uncomfortable thought but a process we do nonetheless for protection. Similarly, the pre-nuptial agreement can offer certainty and comfort to someone who wishes to protect what they have whilst ensuring that if the marriage does not survive there will be less conflict around finances at a time which is already marred with pain and emotional discord. Much like other insurance policies, we hope you will never need to use it, but if you do, you will be grateful for it.
If you would like to know more – please contact our team on 875875 or fill out the form below.