Today saw the introduction of a new legal term ‘Qualifying Nupital Agreement’ or QNA. This follows the Law Commission’s recommendation that legally binding Qualifying Nuptial Agreements are introduced in place of full prenuptial agreements.
By entering into a Qualifying Nuptial Agreement a couple can set out exactly how they want their finances to be divided in the event of a divorce or separation. This is superb news for those couples seeking to clarify their arrangements.
If entered into correctly, the new QNAs will be enforceable if certain formal requirements are met, these being:
1. The QNA must be contractually valid;
2. The QNA must be made by deed;
3. The QNA must be made within 28 days before the marriage/civil partnership;
4. Both parties must have received disclosure material relating to the financial situation of the other; and
5. Both parties must have received legal advice.
It is recommended that 4 and 5 are compulsory and cannot be waived.
What can the QNA relate to:
The Law Commission has recommended that the primary purpose of a QNA will be to ‘ring fence’ certain assets from being shared in the event of a divorce. We would expect most clients to seek to ringfence inherited wealth and pre marital assets and this is consistent with the majority of instructions relating to pre nuptial agreements received to date. In addition, it will be possible to determine the proportions that capital wealth will be divided e.g. 60:40 etc.
It is recommended that QNAs do not deal with future needs for housing, childcare, income or any other financial needs. This is on the basis that too often these needs are unreaslitically assessed at the outset of a marriage when optimism abounds. So while a QNA may make provision for future needs, it is suggested that the court will have the discretion to reassess these if they are unfair. It is recommended that the benchmark for assessment is ‘financial needs’ rather than ‘reasonable needs, so encourage a less generous approach.
The Report is welcomed by divorce practitioners who have been struggling with lack of clarity in this area. Many will no doubt raise criticisms of the Report, most likely relating to the things it doesn’t say, for example about excluding gifts and inheritance from being shared as a matter of general law. There will be questions relating to how needs will be assessed in general and whether it goes far enough. However this should not distract from the very positive work conducted and the welcome guidelines provided.
Finally, it is pleasing to note that the opening paragraphs of the Executive Summary of the report refers to the overiding aim to attain independent living for the parties. While it recognises that this may take time, it is extremely helpful to have this set out in such clear terms. We are still seeing far too many cases where long term maintenance orders are made which severely hampers the ability of either party to attain independence and freedom from the other party.