Are prenuptial agreements legally binding in the UK?

Unlike many jurisdictions across the globe, prenuptial agreements are still not legally binding in the UK. This is despite decades of campaigning for prenuptial agreements to gain legal recognition. 

There has however been a growing recognition in the English Courts that prenuptial agreements, entered into properly, should be upheld provided they meet the needs of the parties.

I am pleased to note that, as a firm, we have seen a recent increase in the number of couples seeking to enter into a prenuptial agreement before they marry. Whilst it is still not possible to guarantee that the prenuptial agreement they sign will be upheld in later divorce proceedings, what can be guaranteed is that: 

1. If there is no prenuptial agreement, then there will be nothing in place to fetter the courts’ very wide discretion in the event of their future divorce; and
2. If there is a prenuptial agreement, then provided certain conditions have been met, it is likely to be upheld by a future divorce court, or at the very least, it will be a persuasive factor that the court takes into account when deciding how to exercise its discretion upon divorce.

In February 2014, the Law Commission published Consultation Paper 343: Matrimonial Property, Needs and Agreements.

After consultation with many leading family law professionals, the Law Commission set out a framework within which it recommends we could make prenuptial agreements legally binding.  

They referred to them as “qualifying nuptial agreements” and their recommendations were as follows.

 To be a qualifying nuptial agreement: 

1. It should be a valid contract; namely there should be an offer, acceptance and consideration;
2. Neither party should have been under any undue influence or pressure to sign it;
3. It should be in writing and be signed by both parties as a deed;
4. It should contain a statement that both parties understand that it will remove the Court’s discretion to make financial orders, save in so far as the agreement leaves either party with their needs unmet.
5. It must not be executed less than 28 days before the marriage or civil partnership, and will be invalid if it has;
6. Both parties should have received the benefit of financial disclosure from the other;
7. Both parties must have received independent legal advice at the time that the agreement was formed, which included advice: 
   1. That the agreement prevented the court making financial orders inconsistent with the terms of the agreement, save in so far as financial needs are concerned; and
   2. The effect of the agreement on the rights of that party.

By ensuring that the prenuptial agreements we draft are compliant with the recommendations of the Law Commission, we can ensure that if and when the law does change, the prenuptial agreements we have drawn up before that date will then become legally binding, provided they meet the parties’ needs. 

It is important to bear in mind that the court will still exercise its powers and award greater financial provision than the agreement provides for, if the prenuptial agreement does not meet one of the party’s needs. 

It is, therefore, crucial to consider whether the terms of a prenuptial agreement meets both parties’ needs. If it does not, it is important to build in some mechanism to ensure that it can do so in the future. It is therefore advisable to include provision for the terms of the agreement to be reviewed on key events, for example, in the event of children being born to the relationship.

Bearing in mind the number of marriages that sadly end in divorce, it is really important that those entering into a marriage with pre-acquired wealth, protect that wealth as best they can.  If done properly, a prenuptial agreement is the best way to achieve this.

We have a large specialist team of family lawyers who can help you to protect the wealth you are bringing into a marriage.  

It might not be the most romantic thing to do before your special day, but if the marriage is a success, you will never need to rely upon the agreement. If it is not, you can relax in the knowledge that there is a prenuptial agreement in place which prescribes what you both intend to happen in the event of your divorce and which the court should only really challenge in the event that it does not meet one person’s needs.