Agreements for financial provision — overviewPre-nuptial agreements

Pre-nuptial agreements are agreements entered into by a couple prior to a marriage (or in the case of civil partnership, a pre-civil partnership agreements) seeking to regulate their financial liabilities and responsibilities towards each other in the event of a divorce/dissolution.

Under English law pre-nuptial agreements are not formally binding between the parties and are not enforceable They cannot oust the jurisdiction of the court or the Child Support Agency (CSA). They have , however, carried significant evidential weight in subsequent divorce proceedings or proceedings for dissolution. They have been taken into account by the court in exercising its discretion under the Matrimonial Causes Act 1973 (MCA 1973), s 25 (and would similarly be a factor for the court in the corresponding provisions set out in the Civil Partnership Act 2004 (CPA 2004)) either as part of the conduct of the parties or as a consideration in all the circumstances of the case. The Supreme Court has recently reviewed the enforceability of pre-nuptial agreements and indicated that in future, in appropriate cases, due weight should be given to any contract freely entered into by the parties, in the exercise of the judge's discretion subject to the agreement being 'fair'.

Questions for the court to address, including whether:

• the parties were properly advised as to its terms

• contractual formalities were observed

• there was full disclosure

Consideration will be given as to whether the original agreement made was procedurally fair and whether it was substantively fair, and, if an order were made in those terms, whether it would result in a fair outcome.

Many of the reported cases on pre-nuptial agreements have been concerned with consideration of agreements entered into by parties in a foreign jurisdiction and which court should have jurisdiction.

Post-nuptial agreements

These are agreements entered into after marriage or civil partnership. Similar considerations will apply to the making of post-nuptial agreements as apply to pre-nuptial agreements.

Maintenance agreements

Maintenance agreements are contractual agreements made between a couple, either husband and wife, civil partners or unmarried parties, who are the parents of a child or children that provide for maintenance and support of the spouse or civil partner and the child(ren). If the agreement is not under seal, enforcement will rely on establishing that consideration was given for the promise to pay.

Parents are not restricted by the provisions of Child Support Act 1991 (CSA 1991) from entering into a voluntary maintenance agreement in relation to their children, but if it was entered into after 5 April 1993, any pro-vision purporting to oust the CSA's jurisdiction is void and will not prevent an application to it.

Maintenance agreements made between parties to a marriage or civil partnership and made in writing may be altered by the court under MCA 1973 and CPA 2004. The court's powers in relation to maintenance for children may be restricted by CSA 1991. Proceedings may take place in the magistrates' court, the county court or the High Court. The powers of the magistrates' court are more restricted, both as to the orders that may be made and as to jurisdiction. In both the High Court and the county court the application must contain information prescribed by Family Proceedings Rules 1991 (for applications issued prior to 6 April 2011) or the Family Procedure Rules 2010 (for applications issued on or after 6 April 2011), and (for applications issued prior to 6 April 2011) an affidavit in support exhibiting the agreement is required. For applications issued on or after 6 April 2011 an affidavit in support is not required, the application should be made in Form D50H, and the procedure is the same as for all applications for a financial remedy. MCA 1973 and CPA 2004 set out the circumstances in which the court may make an order altering an agreement.

There are separate provisions in the MCA 1973 relating to applications for the alteration of a maintenance agreement after the death of one of the parties. Time limits apply to the making of such an application. There is also provision in the Inheritance (Provision for Family and Dependants) Act 1975 and the Children Act 1989 for alteration of certain maintenance agreements.

Separation agreements

Upon the breakdown of a relationship, the parties may choose to enter into an agreement to regulate the terms of the agreed financial arrangements between them generally in contemplation of a divorce or dissolution order.

Issues may arise as to the enforceability of the agreement as a contract. A separation agreement may come before the court because one of the parties is seeking to reopen it. The court must decide whether to uphold the terms of the agreement or make an order in different terms. It has been held that the court will not lightly permit the parties to depart from an agreement that has been properly and fairly arrived at with competent legal advice. If the court concludes that there was an agreement, it has to consider whether it was invalidated by considerations such as duress, mistake, material non-disclosure or disparity of bargaining power.

The court must exercise its discretion to reach a just and fair outcome having regard to the criteria under MCA 1973, s 25. The agreement will be considered either as one of the circumstances of the case or as the conduct of the parties.