Pre-nuptial Agreements: What, Why And How

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When anyone gets married, they truly hope it will last forever; however, unfortunately this isn’t always the case. With 42% of marriages in the UK now ending in divorce, people are extremely keen to take a sensible approach by planning what should happen if their marriage does break down. Once viewed as an extremely American concept, prenuptial agreements are now becoming a very popular as a way for couples in the UK to plan for the ‘worst case scenario’.

But what exactly are pre-nups?
And are they even legal in the UK?

Katie McCann, answers the most common questions around this potentially complex area of law.

What is a pre-nuptial agreement?

A pre-nuptial agreement is an agreement created by a couple before they get married. It sets out what will happen to any assets should their marriage breakdown.

Why have a pre-nuptial agreement?

There are several reasons a couple may want to enter into a pre-nuptial agreement. One spouse may have family wealth requiring protection so that it is ring-fenced and will not form part of a matrimonial claim upon divorce. Even when there isn’t exceptional wealth, couples may prefer to ensure that they are on the same page by having an agreement that clarifies exactly what should happen if they divorce.

The significant benefit of a pre-nuptial agreement is that things can be agreed in a calm and equitable manner, as opposed to when the relationship has broken down and acrimonious feelings may cause either spouse to act without rationale.

Are they legally binding?

In the UK, pre-nuptial agreements are not automatically legally binding. However, recent case law seems to suggest that the courts will uphold agreements that have been entered into fairly. There have also been proposals put forward by the Law Commission that state that they should be given legal status.

Who decides on the contents of a pre-nuptial agreement?

The contents of a pre-nuptial agreement must be agreed by both parties. Although suggestions may be made by each spouse, both must feel comfortable with the agreement. If they are not, or the court finds that either spouse was bullied or signed the agreement under duress, then the agreement will not be valid.

A pre-nuptial agreement should therefore not be used to disadvantage one spouse, but rather it should set out a reasonable and equitable agreement.

Can they be contested?

There are several reasons why a pre-nuptial agreement may be contested or found to be invalid. If both parties did not obtain independent legal advice, or if there was disparity of advice, this may result in one of the parties being prejudiced.

A pre-nuptial agreement will be contested if one of the parties feel that they had been forced to sign it. This problem commonly occurs when one spouse is presented with an agreement on the eve of the wedding and signs it under duress.

Both parties also have a duty to disclose all of their assets before entering into the agreement. It must be the case that each party knows what they are effectively losing or gaining claims over from the start.

What if I’m already married?

Couples that have already married may become aware of the benefits of having a pre-nuptial agreement and regret not having created one ahead of their wedding. In this case, they will be able to enter into a post-nuptial agreement instead.

Post-nuptial agreements operate in a similar way to pre-nuptial agreements; however, as their name suggests, they are entered into once the marriage has occurred.

Like pre-nuptial agreements, they are not 100% legally binding; however, they are likely to be upheld by a court if they are entered into fairly.

Wriiten by Katie McCann Family Lawyer.

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