Prenuptial agreements (prenups) are documents that clarify the agreement a couple reach about their finances before they marry and provide important protections in the event of a divorce.
It is important that anyone considering a prenup understands how they work and the UK law relating to prenups. Many people do not realise that a prenup will not automatically be upheld by the courts in England or Wales during a divorce. Whilst not strictly legally binding, a landmark Supreme Court ruling in 2010 means that if prepared correctly and entered into with a full understanding of the consequences they are very likely to be considered when a couple divorce.
Our solicitors are able to advise on all aspects of prenups, including how they are applied during a divorce and how the courts treat them.
Is a prenup legally binding in the UK?
Note that when we discuss prenups in the UK, the divorce and matrimonial law in Scotland is different to the law in England and Wales. In Scotland, prenups are generally regarded as legally binding and enforceable.
Prenups are not considered to be automatically enforceable in England and Wales, nor do they carry the same legal weight as a court order.
However, this is not to say that they are not taken very seriously. Prenups, if correctly drafted, should be an unambiguous declaration of how income and assets that have been brought into the relationship should be divided.
The courts will recognise a prenup as evidence of both parties’ intentions and the terms will be upheld after various issues are considered, such as:
- Whether both parties fully understood the terms and implications of the prenup
- Whether both parties received independent legal advice when creating the prenup
- Whether there is any evidence of one party being pressured into signing the prenup
- Whether both parties provided full financial disclosure
- Whether it will be fair and reasonable to uphold the terms of the prenup
- Whether the prenup would prejudice children in any way
Depending on the particular facts of the case, the courts could decide to divide a couple’s assets in a manner that differs from the terms included in the prenup.
Why are prenups not legally binding in the UK?
UK prenup laws have developed significantly over time. Prior to 2010, prenups were considered unenforceable as being against public policy. However, following the case of Radmacher v Granatino, the Supreme Court ruled that courts should:
“Give effect to a pre-nuptial agreement that is freely 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.”
The Supreme Court also ruled that UK prenups should not be legally binding in all cases. Rather, every agreement a court is presented with should be considered on a case-by-case basis, considering the guidance listed above.
Following a consultation, the Law Commission published a final report in February 2014 titled Matrimonial Property, Needs and Agreements. Part of the consultation recommended the introduction of ‘qualifying nuptial agreements’ as enforceable contracts that would enable couples to make binding arrangements that would not be subject to the court’s assessment of fairness so long as certain requirements are met. The Government has not yet made its final response to this recommendation.
What happens if you sign a prenup and get divorced?
The terms of a prenup will only come into effect when a couple decides to divorce. If both parties agree on the terms of the prenup and how to divide their assets, they can work together to finalise a financial settlement. This will avoid any potentially protracted legal proceedings that might have happened without a prenup. If the prenup terms are agreed these can be confirmed and written into a consent order as part of the divorce process. A specialist family law solicitor will help you with this.
If there are any disagreements about how finances are to be split your best course of action is to take specialist legal advice. Your lawyer will review the prenuptial agreement that you have in place and advise on it’s suitability in the circumstances and whether you might be able to negotiate a different settlement, or ask the family court to decide whether it should be enforced.
Advice on prenups
If you need advice on your situation, need to discuss whether a prenup will be right for your situation, or are looking for support with the process of creating a prenup, our team are here to help.
Our team can work alongside you to review your current circumstances and provide straightforward guidance that helps you to clearly understand your position.
To take advantage of a free 30-minute consultation with an expert local family law solicitor, call 0800 321 3832 or complete our quick online form.
Kate Brooks
Family law solicitor
