What is a prenuptial agreement or
Quite simply, a written, formal agreement entered into
by a couple before they get married that sets out a
game-plan for what they have agreed will happen to their
assets in the event of a future divorce.
By entering into a pre-nuptial agreement, where there
is a marked imbalance in the relative wealth of the
two parties to the marriage, both partners can agree
that on a split up the wealthier party should not suffer
a 50% loss of assets, particularly if they have not
been married long and if there are no children.
The wealthier party can try to keep certain assets out
of the “matrimonial pot” on divorce when
the UK Court makes an assessment of the relative worth
of the partners to the marriage. In this way there is
less danger that such excluded assets will have to be
sold off in order to fund a divorce settlement.
Inherited wealth can be kept out of the reckoning and
the interests of existing dependants and children can
be looked after.
If my spouse dies can a Prenup be varied?
Yes. Under The Inheritance (Provision for Family and
Dependants) Act 1975, a Court can vary the terms of
a prenuptial agreement if one of the parties dies without
making reasonable Provision for the other or for the
children. Please visit Contesting
A Will for further information on how to contest
a will in these circumstances.
Who can enter into a prenuptial agreement?
Any couple who are contemplating marriage or entering
into a civil partnership.
Can I make a prenuptial agreement once I have got married?
It is much better to agree all of these arrangements
before the marriage takes place but it is possible to
enter into similar agreements once the marriage has
taken place. These are known as post-nuptial agreements.
If you want to discuss a post-nuptial agreement please
get in touch with us and we will be happy to advise
If we rush into a prenuptial agreement just before we
get married will it still be enforceable?
It is not a good idea to rush into a prenuptial agreement
and, generally speaking, you should sign up some weeks
before the date of the actual wedding ceremony. If not,
corners tend to get cut and there will be an increased
risk that the legal validity of your prenuptial agreement
can be challenged later. Also, if you rush into a prenuptial
agreement UK courts tend to be open to an argument that
one party was under a degree of duress and this can
also mean your prenuptial agreement will not be enforced
by a UK court.
If we have left it too late should we postpone getting married until we have sorted out a proper prenuptial agreement?
If you have not left enough time properly to sort out a legally binding pre-nuptial agreement UK courts have tended to imply that it would probably be a good idea to postpone for a short while to enable the legal process to take place. The very fact that there has been a postponement of the wedding date because of the pre-nuptial arrangements may well make them more persuasive in the event of a break up.
Are prenuptial agreements legal in the UK?
Yes. In most other countries, prenuptial agreements have been legal for a long time and the UK is now coming into line fast. In 2003, in the case of K v K, a UK court decided to enforce the provisions of a prenuptial agreement and to preserve the personal wealth of the husband and since then there have been many similar cases.
Will a UK Court enforce the provisions of a prenuptial agreement?
Yes. In most cases, the court will be persuaded to implement the provisions of a prenuptial agreement provided that it has been properly drawn up in the manner recommended in this web-site and provided it would not lead to an unjust result. The UK courts always retain a discretion in family law matters and because of this it possible that the court may decide to overlook all or some of the provisions of a prenuptial agreement in any given case so it cannot be said that there is an absolute rule that prenuptial agreements are always followed by a UK court. However, it is likely that they will be or at least that they will be considered persuasive and will have a significant bearing on the financial outcome of any given case.
If I have already signed a prenuptial agreement, can I expect it to be enforced by the courts?
Possibly and possibly not. Your case will depend on the particular circumstances of your case and the manner in which the prenuptial agreement was entered into. Some of the factors that may affect enforceability of your prenuptial agreement are discussed in this web-site. Please contact us without delay and we will be pleased to review the question of whether any prenuptial agreement that you may have entered into is likely to be enforce and the scope, if any, for challenging its provisions.
What’s the risk if I just download a cheap DIY prenuptial agreement from a web-site offering a cheap prenuptial agreement and some “quickie” legal advice?
We would not recommend any DIY solution even if is it coupled with some quick legal advice. Every person’s situation is different and needs to be fully and carefully considered. There are many factors that need to be taken into account to ensure your pre-nuptial agreement will be enforced. The actual agreement should be properly drawn up by a qualified family lawyer and tailored to your requirements. It is a myth to think that a DIY agreement will be cheap and effective. It generally needs to be re-drafted and will save neither time nor money. Get it right and you could well save millions. Conversely, the cost of getting your prenuptial agreement wrong may well run into millions of pounds. You could lose up to 50% (or in some cases that we have recently seen up to 60%) of your entire personal wealth, property, income, investments, pensions, cars, antiques…the lot. In addition, you may have to contribute 50% of your future income and earnings. It can take a life-time to recover financially from a divorce settlement imposed by a UK court. DIY solutions are dangerous.
Why should I use a Solicitor to draw up a proper prenuptial agreement?
Well, you do not need to use a lawyer but we would not recommend that you do it any other way! The cost is minimal compared with the financial protections and benefits that you will get from a properly drawn-up prenuptial agreement. UK courts can be notoriously arbitrary in divorce settlements and are unlikely to have any mercy on a couple that try to rely on a make-shift agreement where neither party has had the foresight to instruct a solicitor or take any proper legal advice. The greater your wealth, the greater the importance of getting independent professional legal advice.
Will the Court enforce my prenuptial agreement if I have children?
Yes, although the court will expect to see that the prenuptial agreement contains appropriate provisions for the well-being and maintenance of the children and will always apply the Section 25 principles to achieve fairness if the prenuptial agreement falls short in this area and will seek to ensure a just result if the provisions of the prenuptial agreement would not do so.
If I have signed away my entitlements under a prenuptial agreement is this a breach of my Human Rights?
Probably not. This argument was canvassed at great length by Ms Cherie Booth QC in the NG case. It did not impress the court much.
Can I change a prenuptial agreement once I have entered into it?
Any agreement can be changed if the parties to the agreement agree on what changes there should be.
Can parties to a civil partnership or same-sex relationship have a pre-nuptial agreement?
Yes, no problem. Parties to a same-sex marriage can also enter into a prenuptial agreement for exactly the same reasons as any other marriage.