Prenuptial agreements are becoming increasingly popular in the UK. Although prospective spouses rarely enter into a marriage anticipating that their union will end in divorce, more and more pragmatic couples are anxious to plan for this possibility — typically to protect inherited wealth or pre-marital property on any future breakdown of the relationship. 

Still, entering into a prenuptial agreement doesn’t necessarily guarantee protection over any assets acquired either prior to or during the course of the marriage, least of all where both parties have not sought independent legal advice before entering into this type of agreement.

Below we look at what a prenup is and how this works, and what requirements need to be met to help maximise the prospects of an agreement being upheld by a court on divorce.

What are prenuptial agreements and how do these work?

A prenuptial agreement is a legal contract that sets out how any assets and financial resources should be divided between a couple if the marriage were to breakdown. This is an agreement that is entered into prior to the marriage taking place, although it’s also possible to enter into a similar agreement after the event. This is known as a postnuptial agreement.

In either case, the agreement sets out a couple’s rights regarding any property, income and other assets acquired both individually and jointly. In this way, the agreement is designed to provide the parties with clarity and certainty around the financial arrangements should they ever separate, thereby reducing the risk of acrimonious or protracted divorce proceedings.

What are the rules relating to prenuptial agreements?

Under UK law, a prenuptial agreement is not automatically legally binding, where the parties to the agreement cannot override the court's discretion to decide how to redistribute their assets and income on an application for financial remedy. That said, the court must give appropriate weight to a prenuptial agreement as a relevant factor under the Matrimonial Causes Act 1973, in some cases, even decisive weight, depending on the circumstances.

In accordance with the guidance from the Supreme Court in the case of Radmacher v Granatino [2010] UKSC 42, the court should usually give effect to a prenuptial agreement that is freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.

Should legal advice be sought for prenuptial agreements?

The manner in which a prenuptial agreement is entered into will play a crucial part in how much weight the agreement is given by the court, where seeking independent legal advice will amount to strong evidence of a party's understanding of its implications.

In its assessment of fairness, various other factors will be taken into account by the court, including the welfare of any child(ren), the duration of the marriage, the responsibilities undertaken and assets acquired during the course of the marriage, and the future needs of both parties. Still, by securing the services of a family law expert before you get married, this will give your prenup the best chance of being upheld in the event of divorce.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.