Intro
Prenuptial agreements are not legally binding in the U.K. This means that a Family Court in England and Wales has no obligation to approve the terms within an agreement, especially if they are incompatible with the Matrimonial Causes Act 1973. This is the act that deals with the formal end of and finances stemming from the end of a registered relationship (marriage or civil partnership).
What makes an agreement enforceable
Once a marriage/civil partnership breaks down and if the finances are unresolved, the Court on review of any such agreement will want to see the following:
- That the agreement was signed no less than 28 days before the marriage took place;
- Both parties received independent legal advice;
- No undue pressure was placed on either party to sign the agreement;
- There was full and frank disclosure of all assets and liabilities inclusive of inheritances due to each party;
- The agreement adequately meets the needs of both parties and provides for any children of the family;
- The overall agreement is fair.
It would seem that there is no benefit then to having such an agreement in place, but should the above be recorded and signed by both parties and their respective legal representatives, there becomes little reason for the Court to not uphold it.
Do I need a solicitor
Absolutely. It’s important that you’ve received legal advice on any such agreement. It may be to your benefit to not agree to one or in the interests of preserving a long established business or royalties prior to a relationship, you should know your rights and the limitations to such an agreement.
Can I include a clause on cheating
While it is incredibly hurtful and disappointing when a spouse/partner is unfaithful, such clauses are not enforceable in England and Wales.
What happens if I’m sick
There is usually a standard grace period of twelve months, but if you are sick for a long time, it is right to review the agreement and make changes to ensure it meets your needs.
What happens if we have / adopt / become guardians for children
The agreement should be reviewed and adjusted to meet the needs of the younger people you have responsibility for. What you will not be able to do, is pre-empt what a Court would consider as being in the best interests of any children. There is no automatic assumption that responsibility and care for a child will follow standard gendered lines. Under the Children Act 1989, the Court must ensure that the welfare of a child is the priority.
Who pays for this
Depending on the agreement, usually the financially weaker party covers the legal costs of the independent advice provided by a solicitor.
Should I complete a Will
Yes, you should. In all cases, when you are in a registered relationship, you should draw up a Will that reflects your wishes and preserves sentimental or precious items for those you would like to gift. See our Wills & Probate page for more information.
If you have any further questions about pre-nuptial agreements, please contact our Private Family Team