A Pre-Nuptial Agreement (often shortened to “prenup”) is a contract made between two people before they marry or enter into a civil partnership. It records how they wish their assets, liabilities and finances to be handled in the unfortunate event of divorce or dissolution. The agreement can cover property you already own, savings and investments, business interests, future inheritances, and how debts will be dealt with. The purpose is not to plan for failure but to enable both parties to begin a marriage in full openness, understanding the financial territory ahead of them.
Legal Status of Pre-Nuptial Agreements in England and Wales
Pre-Nuptial Agreements are not automatically legally binding in England and Wales. That said, since the landmark Supreme Court case Radmacher v Granatino (2010) courts have accepted that such agreements should be given effect, provided they meet certain conditions. The agreement will be considered by judges under the framework of existing family law, including the Matrimonial Causes Act 1973, when determining financial settlements on divorce.
What Makes a Pre-Nuptial Agreement More Likely to Be Enforced
To maximise the chances that a Pre-Nuptial Agreement will be upheld by a court, the agreement should be drawn up correctly, fairly, and in a way that both parties fully understand. Some of the key features that tend to make Pre-Nuptial Agreements more robust are full financial disclosure, independent legal advice for both parties, and ensuring that the agreement is entered into freely and with enough time before the wedding. Signing close to the ceremony increases the risk of it being challenged. Courts will also consider whether the agreement is fair and whether it leaves either party in unreasonable financial hardship. Additionally, couples should anticipate reviewing the agreement if their circumstances change significantly, such as having children or experiencing major financial shifts.
What Pre-Nuptial Agreements Can Include
Pre-Nuptial Agreements are highly flexible and can be tailored to suit the couple’s situation. They can set out how property owned by either party before the marriage should be treated, how jointly purchased property will be divided, what happens to business interests or inherited assets, and how pensions should be managed. The agreement can also address liabilities such as debts, outline provisions for spousal maintenance, or provide financial protection for children from previous relationships.
What Pre-Nuptial Agreements Cannot Do
There are limits to what Pre-Nuptial Agreements can achieve. They cannot override statutory obligations such as the financial rights of children, nor can they exclude the court’s jurisdiction over financial remedies. Courts will not enforce terms that are grossly unfair or that attempt to avoid responsibility for child maintenance. Agreements that include personal or lifestyle clauses, such as arrangements about household responsibilities or pet custody, are also unlikely to be enforceable.
Practical Steps to Making a Pre-Nuptial Agreement
Couples considering a Pre-Nuptial Agreement should begin with open and honest discussions about their finances, including assets, debts and any expected inheritances. Each person should receive independent legal advice so that the agreement is fair and properly understood. It is also important to allow sufficient time for negotiation and drafting before the wedding, ideally ensuring the agreement is finalised at least a month before the ceremony to avoid claims of undue pressure.
Potential Drawbacks to Consider
While Pre-Nuptial Agreements can provide valuable clarity and protection, they are not without drawbacks. Discussing them may feel unromantic or uncomfortable, and the process can involve legal costs and negotiation. There is also no absolute guarantee that a court will uphold the agreement if it is found to be unfair or if formal requirements have not been met. Circumstances can also change over time, meaning that the terms may become outdated or unsuitable without regular review.
For more information and to find out how Pre-Law can help, please contact us on 01524 907100, info@ppre-law.co.uk ir through our online enquiry form.
