A prenuptial agreement is a document that couples can enter into before they marry which sets out exactly what will happen to their finances if the marriage unfortunately breaks down. The most common reason people will enter into a prenup is because they may want to protect assets that they have acquired before the marriage, for example property or business assets.
The Supreme Court of Radmacher v Granatino (2010) transformed the way English courts and indeed the public, regard prenuptial agreements. The case concluded that the court should give effect to a nuptial agreement that has been freely entered into by each party, with full appreciation of its implications unless in the circumstances prevailing, it would not be fair to hold the parties to that agreement.
Are they binding?
Prenuptial agreements are not automatically binding in the UK, but they are more likely to be upheld by a court so long as it meets the qualifying criteria, as determined by the Supreme Court and Law Commission:
- The agreement must have been freely entered into;
- Both parties must understand the implications of the agreement;
- The agreement must be fair;
- The agreement must be contractually valid;
- The agreement must have been made at least 28 days prior to the wedding;
- There should be full disclosure from both parties about their financial circumstances;
- Both parties must have received legal advice;
- The agreement should not prejudice any children;
- Most importantly, both parties’ needs must be met.
There is always the possibility that the agreement may be departed from in the event that it is unfair and fails to provide adequately for the needs of either party or any children of the marriage. A prenup cannot oust the jurisdiction of the court, and they will ultimately retain discretion to make any order is deems fair. This is why it is vital for parties to seek independent legal advice regarding the preparation and drafting of their pre-nuptial agreement in plenty of time.
Why enter into a prenup?
Prenuptial agreements are particularly suitable where one party has acquired assets prior to their marriage. This may be appropiate in the following scenarios:
- One or both parties marrying later in life
- Where a party or both have been married before
- Where a party or both have children from previous relationships and wishes to protect future inheritance
- Where either party has received an inheritance
- Where one party is a beneficiary under a trust
- Where one or both parties have acquired assets such as property, investments and pension provision prior to the relationship
- Where there are business interests
The main advantages of entering into a pre-nuptial agreement are as follows:
- Clarity – both parties can define exactly what is deemed to be matrimonial and non-matrimonial property prior to the marriage to avoid dispute and elevated legal costs in the event of a future divorce.
- Certainty – at the outset of marriage both parties have the freedom to decide how their finances will be divided should they separate.
- Minimises acrimony on divorce – setting out how assets are to be split at the outset results in less animosity during the divorce process.
- Protection of assets – interest in assets such as property, businesses, money can all be kept separate from the other party to the marriage.