What is a Prenuptial Agreement?
A prenuptial agreement, also referred to as a premarital agreement or a prenup, is a written contract agreed upon by both partners prior to a marriage or civil partnership. The purpose of a prenup is to ensure that it is agreed what each partner owns and what each is entitled to, should the marriage or civil partnership break down. This helps avoid future family conflict or litigation costs required for financial remedy procedures in a divorce.
Why should I have a prenuptial agreement in place?
Whilst it may not be the most romantic part of any partnership, having a prenup in place can provide an important safety net. Prenuptial agreements are likely to vary and can provide various benefits for you and your family. Most will include the division of property, assets and money. Others may be more detailed – for example, if one or both parties own a company.
Ensuring that both partners are on the same page provides peace of mind going forward in the relationship.
Is a Prenuptial Agreement legally binding?
Technically, prenuptial and postnuptial agreements are not currently enforceable by law in England and Wales. However, they are now being regarded by the Courts as persuasive and even decisive in some cases, particularly in cases of short marriages. Many divorce cases in recent years have shown that they are beginning to hold a lot more weight in Court, especially if both parties obtained independent legal advice before entering into the agreement.
Case Law – How does it affect a Prenuptial Agreement?
Still, the most important legal precedent for prenuptial agreements is the 2010 case of Radmacher v Granatino. The Supreme Court, by way of a majority ruling, opted to uphold the terms of a prenuptial agreement following a divorce. The case was assessed in line with Section 25 of the 1973 Matrimonial Clauses Act.
The husband made an appeal after a successful claim was made by the ex-wife in the Court of Appeal. The prenup was, therefore, initially perceived to hold less weight as a legally binding contract due to the perceived circumstances under which it was signed. However, the successful appeal denied the husband financial relief which was not part of the prenuptial agreement.
The decision deemed that it would not be unfair to hold the husband to the agreement. This is because the prenup provided relief for the husband to cater for his two daughters. The Supreme Court supported the validity of the prenup, as it was believed that both parties entered into the agreement consensually, without pressure or disclosed information.
What can I do to ensure my Prenuptial Agreement is upheld?
Whilst there is no guaranteed way to ensure that your pre or post nuptial agreement will be legally upheld, there are certain measures you can take to maximise the legibility of the document:
- Make sure that neither party is pressured into signing the agreement.
- Have both parties provide full financial disclosure and fully understand the terms of the agreement, so neither is exploited.
- Arrange the pre-nup at least one month prior to the marriage or civil partnership.
- Ensure that the contract details in the spousal arrangement are not outdated, by amending or accounting for changes in the marriage, such as providing for children.
- Have the prenup drafted up by separate family lawyers, so each party receives individual legal advice.
Can I opt out of a prenup I have already signed?
It is always possible to opt out of the prenuptial agreement made when going through a divorce settlement. However, it is worth noting that if the matter was to go to court the judge would take the prenuptial agreement into consideration. Moreover, as each divorce is subject to different circumstances it is possible that a family solicitor will be able to assist you by looking into the legal aspects of the prenuptial agreement and the reasons for the divorce which could support your claim (e.g. if circumstances have drastically changed since the signing of the prenup).
How Starck Uberoi can help
Starck Uberoi’s family solicitors are experienced in cases involving prenuptial and postnuptial agreements, and will ensure that your case is dealt with sensitively and effectively. For more information, please visit our Family Law page.
To book an appointment with our family lawyers, please call 020 8840 6640 or email solicitor@starckuberoi.co.uk. Our offices are located in Brentford, Ealing, Richmond, London Belgravia and Canterbury, all within easy reach by public transport. Our partner, Raminder Uberoi, can also provide a Notary Public Service at any of our London offices.
