If you enter into a Pre-Nuptial agreement, will it be enforceable if the relationship breaks down? Our solicitor, Chris Barber, discusses what needs to be considered when entering into a Pre-Nup. Click here for more information on our prenuptial agreements.
Our video contains captions, but if you prefer, you can read the transcript below:
Pre-Nuptial agreements are often in the news when we hear of celebrities entering into them. However, they are not just for the rich and famous and are more common than some people think.
They can be used for any couple getting married or entering into a civil partnership. Examples of when they are used are if an older couple is getting married and they have accrued assets before the relationship, or perhaps couples who are entering a second marriage and already hold assets such as property want to protect that property for their children. There was a famous case of Radmacher in 2010 and since then they have been increasingly adopted in English law. That case didn’t say that prenuptial agreements are absolutely binding, but it did conclude that the Court will seek to apply a prenuptial agreement unless it is unfair.
In that case, the settlement was reduced from £5 million to £1 million because of the prenuptial agreement and how it was entered into before the marriage. A court can take into effect many aspects, but prenuptial agreements will have significant importance as long as it was entered into fairly.
The court has defined the term fair (in the context of prenuptial agreements) as an agreement that has met the following criteria (1) both parties have fully disclosed their assets to each other and have received independent legal advice (2) the parties intend the pre-nup to be effective (3) there is no duress, fraud, illegality, misrepresentation and (4) there was, I quote, “No unconscionable conduct such as undue pressure, exploitation of a dominant position.” Basically, one person who has the majority of the assets not putting pressure on the partner who doesn’t.
So when all that is said, are prenups enforceable? Well, there are no guarantees, as the court doesn’t have to be bound by it, and it will depend on the parties situation at the time of divorce. But we see more and more that they are more likely to be enforceable if they are considered to be entered into fairly. So, if you are thinking of entering into one, or you need to argue within your divorce proceedings that a pre-nup is, or is not, enforceable (depending on which side you’re on!) you will need to obtain independent legal advice as early as you can.