All Your Questions About Prenuptial Agreements Answered

The number of millennials requesting pre-nuptial agreements has increased exponentially over the years.  Reasons cited include the fact that millennials are getting married later and are more likely to have a start-up business they wish to protect.  Intellectual property such as apps, scripts, and software are now a key feature in modern prenuptial agreements.

There are many myths surrounding prenuptial agreements.  This article aims to answer some common questions about the law surrounding prenups in England and Wales.

What is a prenuptial agreement?

A prenuptial or pre-civil partnership agreement is an agreement between two people about to enter into a marriage or a civil partnership, setting out how they plan to divide their property and assets in the case of divorce or civil partnership dissolution.

Although separating finances forms the backbone of most prenuptial agreements, some couples choose to use them to set out matters such as who gets custody of the family pets or precious heirlooms.

A couple can also enter into a postnuptial agreement after marriage.  These are sometimes set up in situations where one person has come into a significant inheritance, or the marriage is faltering, and the couple wishes to clarify their financial position in anticipation of divorce.

Are prenuptial agreements legally binding in England and Wales?

Pre and post-nuptial agreements are not formally legally binding.  However, the courts have made it clear that provided they are executed correctly and entered into freely, they are likely to be upheld unless it is deemed inequitable to do so.

Therefore, it is crucial you take a prenuptial agreement seriously, as provided certain safeguards are met, you will be held to its terms.

What are the safeguards which need to be in place to make it likely an agreement will be upheld?

For the court to uphold a nuptial agreement the following factors need to be present:

  • each party to the agreement received independent legal advice at the outset
  • full and frank financial disclosure was made by both parties
  • the agreement was not made less than 21 days prior to the wedding
  • neither party was subject to pressure or undue duress
  • the agreement is fair and realistic
  • there has been no great change to the status of the marriage or the parties (factors considered would be the birth of a child or one party suffering a severe illness or accident which rendered them incapable of work)

Prenuptial agreements should be reviewed regularly throughout the relationship, especially after children come along.

What are the advantages of a prenuptial agreement?

Aside from providing some certainty as to how matrimonial property and assets will be divided if your marriage ends, a prenuptial agreement also:

  • gives a couple control over how the financial settlement and any other matters will be managed in the event of a divorce at a time when their views are not clouded by possible negative emotions relating to how the relationship has ended
  • ensures the financial settlement is private in the case of high-net-worth couples or celebrities
  • allows a partner who has amassed significant wealth prior to the marriage to ringfence their assets and/or limit future spousal maintenance payments

Can the terms of an agreement be kept confidential?

Confidentiality is imperative to many high-net-worth couples.  A prenuptial agreement can include a detailed confidentiality clause and other steps can be taken to protect the privacy of your financial disclosure.

Do I have to instruct a solicitor if I want a prenuptial agreement?

One of the key factors in the court giving weight to the agreement is that both parties received independent advice and fully understand the implications of what they are entering into.

Prior to the landmark Supreme Court decision on prenuptial agreements in Radmacher (formerly Granatino) v Granatino [2010] UKSC 42, independent legal advice was considered a prerequisite before entering into a marital contract. Since Radmacher the courts have focused on whether a spouse understood the implications of entering into the agreement.   The issue of whether they received independent legal advice or not will form part of that consideration; however, it is notable that in Radmacher, the husband did not receive independent legal advice but was held to have a full understanding of the agreement’s ramifications.

To avoid any possibility of the agreement not being upheld on this ground, it is highly advisable to seek independent legal advice from the beginning of the process of setting up an agreement.

Solicitors can play a key role in negotiating the terms of the agreement.  They will also draft it and make sure it is executed correctly.

To find out more about prenuptial agreements, please contact our family law team on 01903 229 999 or by email at info@bennett-griffin.co.uk for more information.

Bennett Griffin are award-winning solicitors based in West Sussex with offices in central Worthing and Ferring.  Our experienced and specialist solicitors offer a comprehensive service and will work with you in an honest, considered, and practical manner. 

Please note this article does not constitute legal advice.