It is safe to say that prenuptial agreements don’t exactly have the best reputation when it comes to the perception of Joe Public. Many people see them as the exclusive reserve of the rich and famous, used primarily to stop would-be ‘gold-diggers’ in their tracks or as a financial entrapment into an ultimately loveless marriage.
Others think of them almost as romantic Kryptonite. After all, what could be more tender and loving than to make preparations for a divorce before the knot has even been tied in the first place, right?
This bad press, however, is mostly unwarranted. With more and more people getting married these days (naturally resulting in more and more divorces), more and more couples are entering into such agreements before saying “I do”.
Much like the Tory government insists ‘Operation Yellowhammer‘ was, a prenuptial agreement is simply a preparation for the worst-case scenario. Suppose the marriage does ultimately go down the drain. In that case, both parties are fully aware of what they’ll be entitled to right from the outset, possibly averting unnecessary anguish and bitter, costly legal battles during the separation.
We seem to think of prenuptial agreements as more of an American staple, but are such agreements legally valid in the UK?
What is a prenuptial agreement?
A prenuptial agreement outlines in advance how the married couple’s finances will be resolved and divided in the event of the marriage ending in separation.
One is often sought when one partner is substantially wealthier than the other and wishes to avoid being ‘taken to the cleaners’ in the event of a marital breakdown. It is also an agreement entered into by ‘typical’ couples to avoid costly litigation and a lengthy period of aggravation if the worst should come to the worst.
When you get married, your assets become ‘matrimonial assets’ and, unless other arrangements are made, your joint incomes will go directly into the so-called ‘marriage pot’. As such, both your income and your assets can be considered by the courts for division during divorce proceedings if they’re not explicitly protected under a prenuptial agreement.
In short, a prenuptial agreement (or ‘prenup’) is to limit the potential claims on the assets of one of the parties in the event of a divorce or legal separation.
Is a prenuptial agreement legally binding in the UK?
As of this writing, a prenuptial agreement is not legally binding in England or Wales, but family courts will take them into consideration providing certain safeguards are met.
However, thanks to the landmark case of Radmacher vs Granatino in 2010, it’s no longer as clear cut as this. On that occasion, the judge enforced a prenuptial agreement that had been entered into by both parties twelve years previously.
Ever since then, prenups have carried greater authority in the family courts due to the judicial precedent set by the 2010 case. However, subsequent similar rulings have still been made on the condition that the agreement was overseen and drafted adequately by a Family Law Solicitor.
In other words, although a prenuptial agreement is not technically legally binding south of the border, it is effectively so as long as the proper criteria are met.
By contrast, prenuptial agreements are legally binding in Scotland as long as they are considered to have been fair and reasonable at the time they were entered into.
What safeguards need to be satisfied for a prenuptial agreement to be enforced?
The following conditions need to be met for a prenuptial agreement to be considered during divorce proceedings in England and Wales:
• The agreement has to have been made at least 28 days before the marriage.
• Each party has to have received independent legal advice before entering the agreement.
• Neither individual has hidden any of their assets from the other. Full disclosure has to have been provided by both parties before the agreement was signed.
• Neither party signed the agreement under pressure or duress.
• No significant changes have occurred since the agreement was signed to render it inappropriate, such as children, disability, loss of income and bankruptcy etc.
• The agreement must meet the requirements of any children who were alive at the time it was signed or who have been born since.
• The agreement must be fair and realistic. The court is far less likely to consider it if it is weighted heavily in favour of one party over the other.
• The agreement has been reviewed and updated during the marriage to account for any children born or significant changes to the couple’s financial situation. The more reflective of each party’s current situation, the agreement is, the more likely the judge will be to enforce it.
In Scotland, the following conditions need to be satisfied to show the agreement to be fair and reasonable:
• Each party has to have had sufficient time to fully consider the terms and possible ramifications of the agreement before signing it.
• Each party must also have been fully aware of all the information needed to make an informed and conscious decision to enter the agreement.
• Each party must have received separate and independent legal advice before signing the agreement.
• Neither party signed the agreement against their will through pressure or under duress.
• The agreement must have either been entered into well in advance of the wedding ceremony or, if it was signed shortly before the marriage, then the two parties have to have begun discussions about such an agreement a reasonable amount of time before officially getting married.
Action Plan
If the above conditions are not met in either Scotland, England or Wales, then it’s highly unlikely that the judge will enforce any prenuptial agreement. Furthermore, because of the conditions that need to be satisfied, preparing or entering into a prenuptial agreement without involving a solicitor is strongly discouraged.
It is advisable to consider having a prenuptial agreement drawn up when contemplating marriage. Contact a family law solicitor who can draft a prenup on a bespoke basis that is tailored to your circumstances.
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