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Are pre-nuptial agreements legally binding in the UK?

What is a Pre-nuptial Agreement (UK)?

A pre-nuptial agreement is a legal agreement entered into by two individuals ahead of their marriage.  The agreement will usually set out how the couple wish their assets and income to be divided should they later separate or divorce.

Can you have a pre-nup in the UK?

You can have a pre-nup in the UK. Indeed, over 60% of people questioned in a recent survey by Seddons and the Marriage Foundation said that they considered a pre-nup before they married.

Are pre-nups valid?

Although pre-nuptial agreements are not legally binding, following the ground breaking case of Radmacher v Granatino [2010], provided certain factors are met, pre-nuptial agreements should now be considered as virtually determinative.

Can you sign a pre-nup after you get married?

It is not possible to sign a pre-nup after you get married. However, a post-nuptial agreement (also called a post-nup or a post-marital agreement) is designed to deal with the same situation as a pre-nup – in other words, deciding how the couple wish their assets and income to be divided should they later separate or divorce.

What is the cost of a pre-nuptial agreement in the UK?

The costs of a pre-nup will depend on the complexity of the issues and the extent of the assets in question. A straightforward pre-nup prepared by a reputable firm of solicitors could cost in the region of £2,000 to £5,000 plus VAT. A more complex pre-nup would cost more.

What must the couple consider?

The pre-nuptial agreement will usually set out which party will own what assets on the breakdown of a marriage.  There will be a distinction made between “matrimonial” assets which will be assets acquired during the marriage or held in joint names, and “non-matrimonial” property which will include assets owed prior to the marriage, inherited assets or assets gifted to one party during the marriage. The agreement will almost certainly deal with the division of these classes of assets differently on the end of marriage, most commonly dividing “matrimonial” assets equally but taking a very different approach to “non-matrimonial” assets.

The agreement may also address income, such as how future income and income from a trust fund should be treated.  It is common, where one party earns or is anticipated to earn significantly more than the other, that provision will be made for the weaker party to receive spousal maintenance from the other party in the event of the marriage breaking down, unless the division of capital is sufficient to provide them with an income stream.

How are pre-nuptial agreements upheld?

On divorce, the parties will either need to agree to uphold the terms of the pre-nup or agree to amend the terms if they both feel that this is fair and necessary. If one party seeks to uphold the pre-nup and other seeks to deviate from it, the court will ultimately need to decide whether or not it should be upheld. This is what happened in the high profile cases of Radmacher v Granatino [2010] and Luckwell v Limata [2014] EWHC 502 (Fam).

What factors are likely to be relevant for enforceability?

Pre-nuptial agreements will be considered as binding if the court is satisfied that:-

  1. There has been material financial disclosure.
  2. Each party has had the opportunity to seek independent legal advice.
  3. The basic vitiating factors of fraud, duress or misrepresentation are not present.
  4. Both parties entered the agreement in a calm rational state, in good time prior to the wedding.
  5. The agreement was fundamentally fair at the time it was entered into.
  6. The pre-nuptial agreement does not attempt to fetter the reasonable requirements that any future child or children may have.

Are there any international considerations?

Some international couples will have entered into a pre-nup abroad before moving to the UK, or they may wish to consider an agreement which deals with their foreign assets. It is very important that such couples consider the international issues carefully and include clear provision in the pre-nup about their preferred jurisdiction and law.

If you would like any further information or advice in relation to this area of law or international divorce law, please do not hesitate to get in touch.

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