Pre-nuptial safeguards

Pre-nuptial agreements are not currently legally binding in England or Wales. However, a Judge is likely to consider and uphold a pre-nuptial agreement as long as certain safeguards have been met. These safeguards are there to not only protect both parties but also to make sure that the pre-nuptial agreement can be considered fair and reasonable. If the agreement is too one-sided, (favouring one person over another) it is unlikely to stand up in court.

Recent cases we see show that an increasing amount of pre-nuptial agreements are being upheld. To give a pre-nuptial agreement the best chance of being upheld, the following safeguards should be met:

• Both individuals need to have received independent legal advice about the agreement at the outset. This ensures both parties have a fair deal
• Full and frank financial disclosure of both parties’ assets must have been made prior to the agreement, with no assets hidden
• The agreement must not be entered into less than 21 days before the marriage
• Neither party must have been under pressure or duress to sign the agreement against their will
• There must have been no significant change which would make the agreement inappropriate (for example, the birth of children)
• The agreement must be fair and realistic. If the division of assets between a couple is weighted too heavily the favour of one party, it may be judged to be unfair by the courts and thrown out, meaning that you would go through the divorce without the protection of the pre-nuptial agreement.
• Pre-nuptial agreements should be reviewed and amended periodically during the course of the marriage, particularly when any children are born.

If the above safeguards are not met, then the pre-nuptial agreement is unlikely to be upheld by the courts. This is why it is important to talk to a professional to make sure you get the best advice.

When entering into a pre-nuptial agreement, each party who is due to get married must carefully consider future eventualities that could impact on the fairness of an agreement – for instance, one partner giving up their career to bring up children, the marriage lasting many years, or any future joint business ventures entered into.