No one begins a marriage expecting to separate or divorce, but circumstances and people can change over time.
In April 2022, new divorce legislation in the UK came into effect, which saw 24,624 applications made between April and June 2023 in England and Wales alone.
Many couples decide it’s best to enter into an agreement to take care of their assets during divorce, which is when a prenuptial agreement (prenup) can be drawn up.
The Definition Of A Prenup
A prenup is a written agreement between a couple before they marry to detail how their assets will be divided should they divorce.
The equivalent agreement for couples entering into a civil partnership is called a pre-registration agreement.
Is A Prenup Legally Binding In The UK?
As laws differ in Scotland and Northern Ireland, we will answer this question from the perspective of prenups in England and Wales.
In short, prenuptial agreements are not automatically enforceable in courts in England and Wales.
That said, the courts are increasingly accepting them as proof of a couple’s intentions should they wish to divorce. As of 2010, the Supreme Court ruled that courts should give effect to a prenuptial agreement entered into freely by both parties unless it would not be fair to hold the parties to their agreement.
As such, prenuptial agreements are not binding in all cases, meaning the court will consider the fairness of upholding any agreement case-by-case.
In 2014, the Law Commission published its report ‘Matrimonial Property, Needs, and Agreements’, recommending “qualifying nuptial agreements” as enforceable contracts, allowing couples to make binding arrangements for their finances in the event of divorce.
Qualifying nuptial agreements wouldn’t be subject to the court’s assessment of fairness.
That said, couples wouldn’t be able to contract out of meeting the financial needs of ‘each other or any children’.
However, specific requirements would need to be met in a prenuptial agreement under the Law Commission’s recommendations for it to become legally binding.
These requirements include, but are not limited to:
- The agreement must be entered into freely and willingly
- The agreement must not have been made within 28 days before the marriage
- Each party must have received legal advice when the agreement was formed
- The agreement must be made by deed and contain a statement signed by both parties
- Each party must have received financial disclosure from the other
1. The Agreement Must Be Entered Into Freely & Willingly
To be enforceable, the agreement must be contractually valid.
In other words, a prenup must be able to withstand challenge on the basis of misrepresentation or undue influence.
The agreement must be entered into freely and willingly by both parties.
2. The Agreement Must Not Have Been Made Within 28 Days Before The Marriage
A prenup is written before getting married, but the agreement must not be made within 28 days before the marriage or civil partnership.
This is because this could give rise to signs of one party being unduly influenced or pressured into signing the agreement.
If a prenuptial agreement falls within this window, it will be invalid.
Generally speaking, you should instruct solicitors about the proposed prenuptial agreement at least six months before the wedding.
3. Each Party Must Have Received Legal Advice When The Agreement Was Formed
At the time the agreement is formed, both parties must have also received legal advice.
Receiving independent legal advice can ensure that neither party has been unduly influenced and that both parties understand the implications of signing the agreement.
If you’re in need of legal advice regarding a prenuptial agreement, Harding Evans can help.
Get in touch with our experienced solicitors today.
4. The Agreement Must Be Made By Deed & Contain A Statement Signed By Both Parties
A prenup agreement should always be in writing and made by deed.
It should also contain a statement that both parties have signed to show that they fully understand the agreement is a ‘qualifying nuptial agreement’ designed to partially remove the court’s discretion to make financial orders.
If you’re unsure or confused about your rights, it’s always best to seek legal advice before entering into a prenuptial agreement.
5. Each Party Must Have Received Financial Disclosure From The Other
Lastly, an important requirement for a prenuptial agreement is full financial disclosure.
Both parties must have received disclosure about the other party’s financial situation at the time of making the agreement.
This will usually be summarised in a schedule attached to the prenuptial agreement, detailing their respective financial positions. Each party must disclose all of their income, assets such as property, and debts.
This will reduce the risk of either party later being accused of concealing assets.
Who Needs A Prenup?
Contrary to popular belief, prenups are not reserved for the rich and famous. They’re for anyone who wants to protect their assets before entering into a marriage.
Generally speaking, it’s better to have a prenup in place if there’s any difference in financial status.
It’s best to draw up a prenuptial agreement that complies with the Law Commission’s recommendations so that if the law changes, it becomes legally binding, provided it meets the parties’ needs.
However, it’s important to note that if the agreement does not meet one of the parties’ needs, the court will still exercise its powers and can award greater financial provisions than the agreement provides for.
It’s, therefore, crucial to consider whether the terms of the prenuptial agreement meet both parties’ needs.
How We Can Help
At Harding Evans, our experienced team recognises that life doesn’t always go to plan.
No two prenups are the same, and yours can be tailored to include any assets you want.
If you’re considering drafting a prenuptial agreement or are seeking legal advice about prenups, contact us at hello@hevans.com to find out how we can assist you.
