What are pre-nuptial agreements?

A prenuptial agreement, also known as an ante-nuptial or pre-marital agreement, is most commonly referred to as a pre-nup. In law, a prenuptial agreement is effectively a contract entered into between a couple prior to their marriage.

If you're thinking of getting one, we can help you.

So how do they work in practice?

Prenuptial agreements are agreements between two people, before marriage, on what will happen to their affairs if they divorce. Similar agreements may also be entered between civil partners (or those contemplating civil partnership).

The content of a prenuptial agreement can vary depending on the financial and other circumstances of the couple. Prenuptial agreements are generally used in order to predetermine how property and assets will be divided by couples in the event of a divorce.

These types of agreements are commonly used by celebrities or other high net-worth individuals in order to protect their assets and wealth. The purpose of a prenuptial agreement is to ensure that such high net-worth people are not stripped of their assets in divorce proceedings.

Prenuptial agreements, if used, should be made in accordance with a number of rules commonly considered important if your agreement is to be enforced by the courts. The guidelines state that:

  • Provision should be made for children
  • Both parties should have taken independent legal advice
  • The agreement cannot be profoundly unjust
  • Full financial disclosure must have been made showing the assets of both parties
  • The agreement must have been drawn up at least 21 days prior to the marriage

Failure to adhere to these principles may render the agreement unusable by the court.

Is a prenuptial agreement legally binding?

Whilst in theory a prenuptial agreement works, in practice they are very difficult to enforce in a UK court of law. As of 2007, in England and Wales, prenuptial agreements are generally unenforceable; however, they may be upheld by a judge at their discretion. 

A recent case from the Court of Appeal (Radmacher v Granatino) considered the contents of the prenuptial agreement entered into by the parties and made their decision accordingly. This is likely to result in legislation allowing the enforcement of a properly drafted prenuptial agreement.

The most important thing to remember is a well-drafted prenuptial agreement is more likely to be upheld in a court, whilst a DIY prenuptial agreement is likely to hold no legal standing.

Given the problems surrounding enforceability of a prenuptial agreement, you may wish to discuss alternatives with a solicitor. For example, setting up a trust to put assets in is a possible alternative. A trust is where one party transfers their assets to another individual to hold on trust for the benefit of someone else.

It is always best to seek professional advice to ensure you protect your interests as thoroughly as you can, particularly if you have assets of high value.

For more of your questions answered, see our FAQ page on prenuptial agreements.

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