Family Law FAQs

A prenuptial agreement is a document which sets out, between parties who intend to marry, what will happen to their financial resources both during the marriage and in the event that the marriage fails. It is also possible to enter into a post nuptial agreement after the marriage takes place addressing the same issues.

Prenuptial agreements are not yet legally binding in England and Wales, however the courts have decided that they will give significant weight to them and look to uphold prenuptial agreements provided the agreement 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 the agreement. If one parties needs are not met in being able to be suitably housed, the court is not likely to uphold an agreement. The agreement must also comply with certain conditions set out by the Law Commission. Those conditions are:

• The agreement must be contractually valid, entered into freely and willingly by both parties.
• The agreement must be entered into by a formal deed which sets out that the parties understand that it is enforceable and may be upheld by the courts if they are asked to make a financial order.
• The agreement must be finalised and signed by both parties at least 28 days prior to the marriage.
• Both parties must have given and received all material information about their respective financial situation to one another prior to the agreement being signed.
• Both parties must have legal advice on the agreement at the time the agreement was drawn up.
• The agreement terms must not adversely affect the reasonable needs of any children.

You should consider entering into a prenuptial agreement if you want to regulate the outcome financially of your marriage as it will govern ownership and responsibility of financial resources both during your marriage and after it’s breakdown. They aim to offer certainty of outcome.

It is often most helpful in circumstances where parties have already accrued financial resources they wish to protect, perhaps for children from a prior relationship, or due to family inheritances. It can protect property or savings or a business from claims from the other party. It could also protect future earnings and pensions from claims.

A prenuptial agreement can be tailored to your individual circumstances. A schedule of each party’s assets, liabilities and income resources should be drawn up and exchanged. It can then be annexed to the agreement as a record of the parties’ financial positions at the time the agreement was drawn up. The agreement can then set out what is to happen to those assets and liabilities and what will happen to any which are acquired during the course of the marriage. This will be the subject of agreement between the parties and negotiation where necessary.

The agreement will usually deal with all sorts of assets including properties, savings and investments, inheritances, pensions and business interests. It can also deal with liabilities and what payments will be made by each party from their income.

In order to stand the best chance of a prenuptial agreement being upheld by the court it must be drawn up in clear legal terms. Both parties must seek legal advice on the agreement and the court must be assured that both parties understood fully the agreement and entered into it willingly and after having given and received full material disclosure of each party’s financial circumstances. Instructing a solicitor to assist you therefore is likely to strengthen the chances that the agreement will be upheld. It is important the parties understand the claims\rights they are giving up and\or acquiring under the agreement.

There have been a number of cases reported in which the courts have upheld a prenuptial agreement, the most widely reported of which was Granatino v Radmacher in 2010.

We would be delighted to assist you to implement an agreement already reached with your partner or to assist you to consider and negotiate the issues relevant for your circumstances. We can assist you in producing your schedule of assets and considering the implications of any proposals when we receive the schedule of assets from your partner. We can then draft an agreement for you both to consider and approve and provide you with advice on the implications of the terms.

As both parties need independent legal advice on the implications of the agreement each party should appoint their own solicitor to advise on the agreement.

A prenuptial agreement should be reviewed regularly on any significant change in your circumstances once the marriage has taken place to ensure that the terms are still appropriate. Whilst you cannot amend the prenuptial agreement you can enter into a new post nuptial agreement which reflects the changing circumstances you wish to address.