A pre-nuptial agreement, is a formal, written agreement between two partners prior to their marriage or civil partnership. It sets out clearly how their finances are to be dealt in the event of divorce. The intention is to make it clear from the outset what would happen if the marriage were to break down, therefore trying to remove any uncertainty in the future.

Pre-nuptial agreements are not automatically binding in the event of divorce.  However, the courts in England & Wales have placed increasing weight on such agreements, respecting the autonomy of parties in their own decision-making.  Therefore, if you enter into a pre-nuptial agreement, you should only do so on the expectation that you will be bound by its terms, even though the courts will have the ultimate discretion as to the division of finances on divorce. 

In order for a pre-nuptial agreement to stand the best chance of being upheld by the courts, the following criteria should be followed:

  • There must be no undue influence, duress, fraud or misrepresentation.
  • The agreement should be signed 28 days before the wedding day;
  • The couple must have obtained independent legal advice at the time they entered into the agreement;
  • The couple should disclose to one another full details regarding their financial circumstances;
  • Both parties’ needs must be met, ie by implementing the terms of the agreement, both parties must be able to meet their reasonable needs viewed within the context of the marriage.

It will not be necessary for a pre-nuptial agreement in every marriage.  The circumstances in which a pre-nuptial agreement may be appropriate are:

  • On second marriages, where you are seeking to preserve wealth acquired before your marriage, particularly if you have children from previous relationships;
  • Where there are inherited assets or you have been provided with financial gifts from family.  Frequently in these circumstances, your family may wish to ensure that these inherited or gifted assets are protected in the event of a later divorce;
  • Where you have business interests which you may wish to look to preserve in the event of a later divorce.  This can be particularly relevant if you have a family business interest.
  • Where assets have been built up prior to your marriage and you wish to ensure that these are protected if the marriage were to break down.

A pre-nuptial agreement requires careful thought and advice.  We are able to offer specialist advice on both drafting and reviewing pre-nuptial agreements, and also on whether agreements are likely to be upheld if you have separated.  Our unrivalled reputation for working collaboratively with other solicitors lends itself to advice surrounding pre-nuptial agreements since, at the outset of your future lives together, it is essential that you are assisted in working together with your future spouse in a collaborative manner.

The law and practice referred to in this article or webinar has been paraphrased or summarised. It might not be up-to-date with changes in the law and we do not guarantee the accuracy of any information provided at the time of reading. It should not be construed or relied upon as legal advice in relation to a specific set of circumstances.