If a prenuptial agreement is fair it’s likely that the courts in England and Wales will recognise it as binding on the parties. Of course there is continued debate over what constitutes fairness in the context of an agreement like this.
As a result the precise legal status of prenups is still to some extent uncertain. This is despite high profile campaigns by groups like Resolution for the full recognition of all prenups that contain appropriate safeguards.
Every couple’s situation is different. And prenups are more appropriate in some circumstances than others. But one thing is clear: if you and your partner receive independent legal advice, then any agreement you sign stands a much greater prospect of being enforced.
The Radmacher Case And Prenups
Lawyers generally consider the 2010 Supreme Court decision in Radmacher v Granatino as the landmark decision in the UK on prenuptial agreements. There, the wife, a German heiress reported to be worth £100 million, sought to rely on a prenuptial agreement signed by her and her husband in 1998. The court decided that it would be ‘natural’ to ‘infer that parties entering into agreements will intend that effect be given to them”.
Crucially however the court was also clear that there would still be judicial discretion to waive any agreement – especially of it was unfair to any children of the marriage.
How Can I Strengthen My Prenuptial Agreeent?
There are a number of steps you can take to ensure that any agreement you enter with your future spouse ahead of marriage stands a greater chance of being enforceable in the future. For example:
- You and your partner should each receive independent legal advice
- Both of you should be completely transparent about your finances. Don’t hide anything.
- There should be a reasonable gap between signing the agreement and the marriage ceremony – at least three weeks. Though if time is tight, a post nuptial agreement is always an option.
- There should be no evidence that one party was pressurised into making the agreement
- You should ensure the agreement is realistic and fair overall. If it is completely one-sided in terms of dividing assets a judge is less likely to uphold it.
At Brookman we regularly advise clients on prenuptial agreements and related matters. We believe agreements that are drafted carefully with both sides understanding the consequences that flow from them serve an extremely useful purpose. Not least in reducing the risk of acrimonious and expensive legal disputes during any future divorce. If you would like to discuss prenuptial agreements please call us on + 44 (0)20 7430 8470 or contact us online.