Pre-nups: What are they and how do they work?

Wedding fever swept the land recently following the nuptials of the Duke and Duchess of Sussex. Whilst it can be easy to get swept along with the jubilations of marriage, there any many things you may wish to consider before the big day; one thing you may wish to consider is whether you will be entering into a pre-nuptial agreement.

So, what is a pre-nuptial agreement or “pre-nup”? Simply put, a pre-nup is a contract between the parties to the marriage stating how the assets will be divided upon any subsequent divorce. It may seem slightly unromantic to anticipate the end of your marriage before it has even started, but entering into a pre-nup is a sensible option, particularly if:

  1. There are assets and/or property that would be hard to split 50/50;
  2. You and/or your partner have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights (it is also crucial to make a Will for the same reason);
  3. You want to protect inherited money or assets;
  4. You want to protect solely owned property/ies;
  5. You want to safeguard substantial savings or expected future inheritance;
  6. You want some say in how financial issues would be resolved in the event of a marriage breakdown (especially if you’ve been through financial proceedings previously;
  7. Either party own a business which they’d like to retain control of; and/or
  8. If your partner has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable for that debt.

“But, are they legally binding?” you may ask. The answer is not automatically but since the seminal decision in Radmacher v Grenatino, the Court will attach substantial weight to a pre-nuptial agreement that is correctly executed and entered into.

Pre-nups should be executed as a deed in line with the requirements for a valid deed under section 1 of the Law of Property (Miscellaneous Provisions) Act 1989. If the agreement has been properly executed, the court’s will also assess the agreement by reference to the checklist set out in K v K by reference to Edgar v Edgar, namely:

  1. Did the parties understand the terms of the agreement?
  2. Were the parties properly advised as to the terms of the agreement (i.e. did they receive independent legal advice)?
  3. Was there any undue pressure or duress put on either party to sign?
  4. Was there full and frank financial disclosure?
  5. Was the agreement made in anticipation of any children being born?
  6. Were there any other pressures such as time constraints which caused the parties to sign?
  7. Did either party exploit their dominant position, financially or otherwise?
  8. Were there any unforeseen circumstances which have arisen since the agreement which would make it unjust to hold the parties to it?
  9. What does the agreement actually mean?
  10. Did the parties understand that the jurisdiction of the court cannot be ousted?

Simply put, if you are entering into a pre-nup, we would strongly advise that both parties to the agreement obtain independent legal advice on the terms; you should not put any pressure on your future spouse to sign; you must be honest from the outset about the extent of your capital and assets; and you must enter into the pre-nuptial agreement not less than 28 days before the marriage.

In both K v K and M v M, the court took a pre-nuptial agreement into account as part of its consideration of all the circumstances of the case under section 25 of the Matrimonial Causes Act 1973 when deciding what orders to make.

Once you have a pre-nuptial agreement in place, you should ensure that if there is any substantial delay between the agreement being executed and the ceremony taking place, the agreement is reviewed. Similarly, we would recommend that you review the agreement at regular intervals, such as every five years, and especially if there are any changes in circumstance such as:

  1. If children are born;
  2. If one of you becomes disabled or unable to work;
  3. If one of you is made redundant;
  4. If one of you retires; and/or
  5. If one of you inherits.

If you require matrimonial advice, please do not hesitate to contact our dedicated Family Law Team on 01702 338338 or at info@paulrobinson.co.uk.