Are pre-nuptial agreements recognised by UK courts?

More and more couples in the UK are entering into pre-nuptial agreements (also known as pre-marital or pre-civil partnership agreements) even though they are not automatically legally binding in this country. In recent years such arrangements have grown in recognition and a couple should expect their agreement to be upheld if:

• It is freely entered into
• They each have a full appreciation of the implications
• It would not be unfair to hold them to its terms

It is now well established that to fulfil these criteria, it is advisable to:

1. Ensure each party has the benefit of independent legal advice. It is best if each lawyer can sign the agreement as well
2. Exchange full and frank financial disclosure beforehand
3. Sign the agreement at least 21 days before the wedding ceremony. Remember to factor in time (sometimes weeks) to negotiate and draft the documentation

There have been two recent cases before the courts which have highlighted how important it is to follow these guidelines. 

In S v H, the couple’s pre-nuptial agreement was held to be invalid. They had signed the agreement only five days before their wedding, and neither took independent legal advice. Some 10 years later, as the couple were divorcing, the court noted that there had been no formal process of disclosure and that the agreement would not have met the husband’s needs anyway.

In another case, AD v BD, the couple signed only a day before the wedding and the court found that the wife did not understand the full effect of what she was signing. Her father had been undergoing treatment for cancer at the time, which added to the sense of undue pressure on the wife. She was not held to the terms of the agreement.

From these cases, we can see that whilst ‘pre-nups’ are valuable planning tools which can save a lot of uncertainty, argument and cost further down the line, they must be done properly. The courts may not recognise a hastily produced document from the internet, an agreement which is grossly unfair to one party, or even one prepared by a foreign notary instructed by the couple at the last minute (as in S v H).

We at Stone King can help you create a robust pre-marital agreement with a strong prospect of being recognised in court, should this eventuality arise. We can also help you remedy a pre-nup which, on reflection, may not be as thorough as you would like by producing instead a post-nuptial agreement.