There are many myths and rumours that surround prenuptial agreements (prenups) and whether they can be enforced in the UK. This article aims to clear up the current law surrounding prenups for those who are looking to make one.

What is a prenup?

A prenup is a document drawn up between a couple before they get married. It aims to outline how their property, debts, income and other assets will be divided up in the event of a divorce. The most common scenario where people make a prenup is where one party has, or is likely to have in the future, more assets than the other – such as business and landowners, or those who are marrying later in life.

This means that if the relationship breaks down, there is certainty for the couple about how their assets will be divided, in order to avoid dispute over who gets what at a time where emotions can be running high. Where there is no prenuptial agreement, and the couple cannot decide, it will be left to a judge to divide your assets – the decision will be taken completely out of your hands and you could be left splitting assets which you brought into the marriage equally between you and your partner.

The prenup can cover any assets you like, such as property, business, future inheritance and savings. Usually, a prenup will involve a list of all the assets the couple own both jointly and separately, and then an agreement on how they are to be dealt with in the divorce – this can be where one party keeps it, or it is split between the two parties.

It is important to note here that there are certain things that cannot be included in a prenuptial agreement. These are:

• Child custody including visitation, religious upbringing and schooling,
• Child support,
• Personal matters,
• Illegal or unfair matters,
• Lifestyle matters

Are Prenups Legally Binding in England and Wales?

Technically, prenups are not automatically legally binding in the UK, but they are increasingly being taken into consideration by the Family Courts. The terms written in the prenup may be decisive in a court’s decision-making process should the dispute end up in court. The 2010 case of Radmacher v Grantiano confirmed that prenups can provide significant evidential weight within the court.

This, however, does not mean that the court will automatically defer to the agreement when making a decision: it can veto certain clauses, or the whole agreement if it thinks it is unfair to either the parties or any children in the marriage. The Law Commission has given guidance on how to ensure that your prenup has the best chance of being upheld by the court:

1. The agreement must be entered into by both parties freely and of their own will (and not under duress or any misrepresentation)
2. Both parties must have received full disclosure about the other party’s financial situation before signing the document.
3. The agreement must be a formal deed and must contain a Statement of Truth, signed by both parties to recognise that the agreement is a qualifying nuptial agreement and stating that the disclosure given is honest and in full.
4. The agreement must be entered into more than 28 days before the date of the wedding or civil partnership.
5. Both parties must have received legal advice or been given the opportunity to have received legal advice on the consequences and terms of the agreement.
6. The agreement cannot attempt to provide an unfair or unreasonable outcome that doesn’t meet the basic needs of the spouse or any children of the marriage.

If you are in need of legal advice regarding a prenuptial agreement, Stella Maris Solicitors LLP can help. We offer services in family law and have over a decade of legal experience. Telephone today on 01793 296118 or email mail@stellamarissolicitorsllp.co.uk to book a consultation.