We look at Prenuptial Agreements and how useful they are in the event of a failed marriage. And are they even valid?

Nobody plans a wedding with separation in mind, but according to the Office for National Statistics, in 2021 the most common duration of marriage for opposite-sex couples was 8 years, for male same-sex couples it was 5 years; and for female same-sex couples it was 4 years.

What does a Prenuptial Agreement mean?

A Prenuptial Agreement (often known as a ‘prenup‘) is a formal signed agreement entered into by a couple before they get married.

It provides a form of protection if the marriage does not last, and it lets couples decide in advance how their property and assets should be divided if they separate.

However, it needs to be drawn up carefully and should not be rushed into at the last minute. This form of agreement is a useful tool for providing certainty for the couple as they embark on their married life.

Why would you want a prenup?

It can be particularly beneficial if any assets would be difficult to divide 50/50; if you want to ensure children from a previous relationship are provided for; if you want to protect business assets or inherited wealth; or if you do not want to be responsible for the other partner’s outstanding debts.

Are prenuptial agreements legally enforceable?

Since the Supreme Court’s landmark decision in Radmacher v Granatino, Prenuptial Agreements can now be given significant weight under UK law, and will be enforceable provided certain conditions are met. 

Courts can still disregard and depart from the terms of the agreement if they are felt to be unfair and it does not prevent either party from making an application to the Court. 

The judgement in Radmacher v Granatino states that:

The Court should give effect to a nuptial agreement that is entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.”

Prenups: factors a UK court considers

When determining whether an agreement is fair and should be upheld the Court will consider
the following:

  • whether both parties had fully and honestly disclosed their assets to the other party before the Prenuptial Agreement was signed, and there is a record of that disclosure;
  • whether both parties had their own independent legal advice on the Prenuptial Agreement;
  • whether the Prenuptial Agreement was signed at least 21 days before the wedding;
  • whether the Prenuptial Agreement contained a provision for it to be reviewed regularly;
  • if it is the case that one of the parties would simply not marry without the Prenuptial Agreement this should be clearly stated in the agreement;
  • and whether the agreement is fair and just.

Any Prenuptial Agreement must be set out clearly and the parties must understand the terms and the implications of the agreement they are entering into.

It is crucial to consult a specialist family lawyer before you sign a Prenuptial Agreement. They can make sure that all the legalities of your agreement are observed, to ensure that it is as enforceable as possible.

It must be very clear that:

  • the agreement has been freely entered into, there must be no duress, fraud or misrepresentation;
  • there must be no unconscionable conduct;
  • there must be no exploitation of a dominant person;
  • the agreement must not contain any unfair terms;
  • it must be clear that the parties intend to create legal relations.

It is completely up to you and your future spouse what terms are written into the Prenuptial Agreement, but it could include clauses covering things like how debts should be dealt with, what happens to a family business, or how the money in your bank accounts should be divided.

Your prenup can also specify which assets will not be included in the matrimonial pot should the parties
divorce further down the line. A Prenuptial Agreement can also specify that any inheritances should be excluded from the matrimonial pot.

The court will want any Prenuptial Agreement to make appropriate provisions for the well-being and maintenance of any existing or future children.

Legal help with prenup agreements

If you need advice on drafting a prenuptial agreement, or want advice on any other Family law matter, please contact Cunningtons’ solicitors Family Law teams at our Braintree, Chelmsford or Wickford branches.

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