A pre-nuptial agreement is an agreement between two parties intending to marry
It is a recording their intention as to who will own what during the marriage, and how their capital, income and pensions will be divided in the event of a separation or divorce.
Are they legally binding?
This aspect has recently changed. Please call us for the latest legal advice.
Would a pre-nuptial agreement be appropriate for me?
Pre-nuptial agreements may be entered into prior to marriage. They are particularly suitable for parties where there is a significant difference in their wealth, and/or income, and those entering second marriages who want to ensure they provide for the children of their first marriage.
What difference would having a pre-nuptial agreement really make?
In the absence of a pre-nuptial agreement, the Court would divide both parties’ assets in accordance with an established list of factors, such as the parties’ needs, incomes, earning capacity, assets, length of the marriage, ages and their contributions to the marriage. In reality, many cases are predominantly governed by needs.
In the absence of a binding pre-nuptial agreement, the Court may order a significantly greater financial benefit for one party than that which the parties would have agreed between themselves had they discussed matters together.
In addition, having a pre-nuptial agreement allows the parties to set out their intentions clearly, thus reducing room for subsequent misunderstanding. This may reduce the litigation, and emotional and financial cost that often comes about when a marriage breaks down.
What is the best chance of a pre-nuptial agreement being enforced by a court?
A Court would be more likely to uphold a pre-nuptial agreement if:
- The parties fully understood the implications of the agreement
- The parties freely entered into the agreement
In order to establish this, the Court would take account of such factors as whether the parties have received independent legal advice, whether both parties have provided full details of their financial positions (if required) and whether either party felt obliged to sign the agreement in order to ensure the marriage took place.
The Court will also consider whether there are circumstances in which it would not be fair to hold the parties to their agreement, such as the birth of a child.
How do I obtain a pre-nuptial agreement?
Firstly you need to discuss with your partner whether a pre-nuptial agreement is appropriate and, if so, try and agree the terms. If you need help to agree the terms, this can be provided through mediation or, alternatively, you can each instruct solicitors to help.
Those terms then need to be recorded in a written agreement which you both sign, having each taken independent legal advice.