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Family law update: Do Prenuptial Agreements Work?

One of the questions most frequently asked of members of our Family team is:  do prenuptial agreements work?

Although many people deem prenuptial (or premarital agreements as they’re also known) to be anti-romantic, a combination of factors has seen a rise in the number of people either wanting to, or are willing to, consider such agreements before they enter into a marriage with their future spouse.

What’s responsible for the rise of prenuptial agreements

An increase in the number of second marriages is largely responsible for an increase in the rise of prenuptial agreements; those who have had to battle to achieve a financial settlement the first around are keen to avoid experiencing the same again.

Another reason behind the rise is that horror stories about costly court proceedings between divorcing couples now hit the headlines much more frequently. Prenuptial agreements can be an incentive for those about to embark on marriage to side-step the same consequences appearing in the headlines if all goes wrong in their own relationship.

There is undoubtedly a greater awareness and acceptance of prenuptial agreements, which has held to remove some of the stigma associated with them in some quarters.

Finally – and most significantly – the courts have repeatedly upheld prenuptial agreements when, prior to a major case in 2010, they were regarded by the law as unenforceable as they were deemed contrary to the state’s wish to encourage and respect the concept of marriage. The Supreme Court’s decision in 2010 changed all of that and paved the way for prenuptial agreements, correctly approached and entered into, to bind the couple entering into them in the case of a future separation and divorce.

Ingredients for a successful pre-nup

So, what are the essential pre-conditions, which will allow a pre-nup to stand up to a legal challenge by one of the parties to it? The important features are

  • The couple must fully disclose to each other their financial resources before agreeing to enter into the agreement. Both parties must fully understand what rights and claims they are potentially compromising before they decide to sign up to an agreement of this nature.
  • There must be no undue influence, coercion or associated promise to enter into the agreement. The parties must commit to the agreement freely and willingly.
  • Both parties, but particularly the party who is compromising his or her rights and claims, must be given proper opportunity to consider what is being proposed before deciding whether to enter into the agreement.  For this reason, it’s strongly advisable to address the question of a pre-nup with your intended at least six months before the big day. It’s no good leaving it until the last few weeks as the chances are that a court will say this caused one or both of the parties to feel under pressure to enter into the agreement.
  • Importantly, the agreement must not be unfair to the financially weaker party. If it is, it’s much more likely that the agreement will be disregarded by a court on a future challenge by the aggrieved spouse. View a prenuptial agreement as a means of securing certainty in the event of a future separation, but against a backdrop of a fair outcome, and it’s more likely that your spouse will not want to challenge the pre-nup if you separate or, if they decide to do so, that it will be upheld by the court.

It is the concept of fairness that generally requires our input, along with the drafting of what can be quite a complex legal document.

Our Family team can help advise those who wish to consider entering into a prenuptial agreement and, for those who decide to go ahead, in drafting the agreements themselves and dealing with the procedural requirements.

If you have any queries about prenuptial agreements, our private client team would be delighted to assist you on this or any other family matter. You can get in touch by emailing or calling the team on 01482 325242.

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