A pre-nuptial agreement is an agreement made by two people before they get married setting out how any assets, such as money and property, will be divided if they later get divorced. The use of pre-nuptial agreements has increased steadily. Pre-nuptial agreements were often thought of as only something for the very wealthy. However, as the number of people remarrying has increased they are increasingly being used by people of more modest wealth to try to protect any assets that they may have acquired before getting married.
In 2010 the Supreme Court of England and Wales decided that pre-nuptial agreements might be legally enforceable. Providing that the people making the agreement entered into it with a full appreciation of its implications then they will be considered to have intended for the agreement to take effect on divorce and the court can rely on that agreement to diverge from what might otherwise have been considered a fair division of any matrimonial assets.
This decision provides greater certainty in the enforceability of pre-nuptial agreements and the likelihood of them being upheld by the court. However, you should be aware that the court still retains discretion to set aside a pre-nuptial agreement should it choose to do so.
If a marriage was short and childless it might be easier to rely upon a pre-nuptial agreement. However, in the case of a twenty-year marriage where the parties had children together then court might decide that circumstances have changed sufficiently to warrant setting aside a pre-nuptial agreement in whole or in part.
The circumstances in which it would not be fair to uphold a pre-nuptial agreement will depend on the facts of a particular case but might include:
- Where there were any children of the family under the age of eighteen and whether the pre-nuptial agreement would prejudice the reasonable requirements of those children
- Where an agreement attempts to address future contingencies, unknown and often unforeseen, of the couple’s future relationship there is more scope for what happens to them over the years to make it unfair to hold them to their agreement and the longer the marriage has lasted the more likely that will be the case
If the enforcement of agreement is likely to result in a situation where one partner would be left to live in poverty whilst the other party was not then the court is more likely to decide that an agreement was unfair.
Equally, if one partner has spent their time raising the children while the other made money the court is unlikely to agree that the person who made the money is entitled retain that all of that money on divorce because that would not be fair.
Pre-nuptial agreements must be fair and will not be enforceable if they do not address the issue of the parties’ reasonable needs. For this reason it is often prudent for a pre-nuptial agreement to identify and provide for reasonable needs and then deal with the issue of how assets might be excluded from the sharing principle which the court would apply in the absence of the agreement.
If you would like advice from one of our expert and highly experience family lawyers on any aspect of a pre-nuptial agreement then get in touch.