A Guide to Pre-nuptial Agreements

A couple planning to enter a marriage or civil partnership may decide to enter into an agreement that shows what they intend to happen to their money and property in the event that their marriage or civil partnership were to end.

Rest assured that entering into a pre-nuptial agreement does not mean that you are more likely to get divorced, such agreements can be particularly beneficial where one or other of you has substantially greater capital or income than the other, or when one or both of you wish to protect assets that you have owned prior to your marriage, including inheritances. They are also beneficial if one or both of you have children from a previous marriage, and you wish to protect assets for the purpose of inheritance planning.

So the big question is, are they binding? Currently, in England and Wales, pre-nuptial agreements are not strictly binding in the event of a later divorce, but the terms of a pre-nuptial agreement may be decisive in the event of a dispute dealt with by the court unless the effect of the agreement would be unfair. To improve the prospect that the court will not consider the agreement to be unfair, there are some rather strict rules to be followed, one of these is that you both must have set out your full financial circumstances (called financial disclosure) and take independent legal advice on the agreement and its effects.

Neither of you must feel pressurised into entering into the agreement and therefore good practice suggests that any pre-nuptials should be concluded within 21 days of the date of a marriage. Additionally, by entering into the agreement you must intend to create legal relations and execute the document as a deed.

A pre-nuptial agreement is a bespoke document drawn up for your particular circumstances. You do need to take the advice of a solicitor though as to the types of provision that are likely to be enforceable.

All in all, we should see pre-nuptial agreements as a positive thing - they can give more certainty as to the financial arrangements in the event that you divorce. It can be an effective way to protect assets that you may have had prior to the marriage and it can be an effective way to protect assets that you had prior to the marriage. 

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