Prenuptial Agreement

A pre-nuptial Agreement is a contract entered into prior to marriage or a Civil partnership which sets out how a couple’s assets will be divided in the event of them divorcing or separating.

Is a Prenuptial Agreement legally binding in England?

Prenuptial agreements are not currently legally binding in England. However, a Judge is likely to take a prenuptial agreement into account when overseeing a case and is likely to uphold it, as long as certain safeguards have been met.

Recent cases show that prenuptial agreements are being upheld in many instances. For a prenuptial agreement to be upheld, the following safeguards must be met:

  • The husband and the wife both received independent legal advice about the agreement at the outset.
  • Full and frank financial disclosure of both parties’ assets was made prior to the agreement. Assets were not hidden.
  • The agreement must not be entered into less than 21 days before the marriage.
  • Neither party was under pressure or duress to sign the agreement against their will.
  • There has been no significant change which would make the agreement inappropriate (for example, the birth of children).
  • The agreement has to be fair and realistic. If the division of assets is weighted too heavily in the favour of one party, it may be judged to be unfair by the courts.
  • Prenuptial agreements should be reviewed and updated during the course of the marriage, particularly when any child or children are born and periodically in any event.

If the above are not met the prenuptial agreement is unlikely to be upheld by the courts.

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