Prenuptial Agreements

A prenuptial agreement is an agreement entered into before a marriage to regulate how the parties are to hold their assets while they are married and,  potentially, how they are to be divided in the event of a divorce.

Historically courts have placed little weight on prenuptial agreements and they are not binding on the court. A prenuptial agreement cannot prevent the court from making what it considers to be a fair division of the matrimonial assets. However in recent cases the courts have taken prenuptial agreements into consideration as one of the circumstances which the court will bear in mind when deciding on the division of matrimonial assets.

When deciding the weight (if any) to be placed upon a prenuptial agreement, the court has to determine whether the agreement was fair and genuine. Things to be taken into account will include:

• did the parties have independent legal advice
• did they have a clear picture of their finances
• how long before the wedding was the agreement signed, and
• was either party under financial or emotional pressure to sign?

The court will also consider whether there have been any significant changes since the agreement was signed, for instance:

• length of the marriage
• birth of any children
• significant changes in the parties’ financial circumstances or health.

Frequently Asked Questions About Prenuptial Agreements

If a prenuptial agreement is not binding, is there any point in having one?

If the assets of the couple are sizeable or the case involves an international element, where the agreement can be relied on in another country, a prenuptial agreement may be worth considering. While they are not currently binding they have been held to be a relevant factor in the case. An agreement may therefore influence any order the court makes and to this extent may be useful.

Can agreements be entered into if parties only intend to live together and not marry?

Yes, you could have an agreement to regulate your financial situation with your cohabitee. Again this would not necessarily be binding but may nevertheless be helpful in helping you both to think through how you would wish financial matters to be arranged both during your relationship and should that relationship ever breakdown.

How are prenuptial agreements agreed and obtained?

You and your partner may wish to discuss the terms of an agreement in mediation. We could arrange the mediation and then draw up any agreement reached, although it is advisable for both parties to obtain independent legal advice on the terms agreed. Alternatively you can each appoint a solicitor to negotiate the terms of the agreement, in which case we could only act for one party.

 

If you would like to discuss how we might help you, please:

 

• call any of our office numbers listed at the bottom of this page;
• contact one of our specialists direct by clicking on their name below; or
• complete our enquiry form

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Members of our team specialising in this area:

Jane Charlton, Stephen Holmes, Jason Lazard, Sarah Wright

Amanda Asbery, Felicia D'Amelio, Jan Ewing, Sophie Jackson, Clair King, Joanna McKenna, Saimah Naeem, Yvonne Noble, Felicity Shedden, Anna Sherwood