Wedding season is approaching - when should I apply for a pre-nuptial agreement?

There are currently no prescribed time limits as to when a pre-nuptial agreement should be completed.  It is best practice that the agreement should be entered into at least twenty eight days before you celebrate your marriage, but you can also enter into post-nuptial agreements shortly after marriage and these should not be treated differently by the Courts should your marriage end. Sam Miles, Partner in our Family Law team in Southampton, explains the facts you need to consider regarding pre-nuptial agreements, and whether it may be right for you.

What is a pre-nuptial agreement?

A prenuptial agreement is a formal agreement entered into by two people before their marriage or civil partnership, and sets out the arrangements that are to be made between the two of them in the event that their marriage breaks down.  “It is a common myth that pre-nuptial agreements are only needed by the rich and famous due to their large wealth, but in reality a pre-nuptial agreement can be used by anyone,” explains Sam.  “If you have several properties, are about to receive a large inheritance or you own a successful business, a pre-nuptial agreement can be a useful document to protect those assets in the event that your relationship comes to an end.”

Are pre-nuptial agreements enforceable?

Although prenuptial agreements are not currently legally binding in England and Wales, they are regarded as persuasive by the Courts.  These agreements are a strong indicator of what you intended at the outset of your marriage and can therefore influence the outcome of any financial proceedings that take place after the breakdown of the marriage.

In the case of Radmacher v Granatino in 2010, The Supreme Court held that appropriate importance should be given to the terms of a pre-nuptial agreement by the Court and approves the terms of the agreement if certain conditions are met.  Those conditions are not particularly onerous and include:-

1. The agreement was freely entered into by each party; and
2. The parties fully appreciated the implications of the agreement when they entered it; and
3. It is fair in the circumstances to uphold the agreement.

The issue of nuptial agreements has been the subject of review by the Law Commission and there are proposals for reform.  Those proposals recommend legislative reform which would see nuptial agreements legally binding where they are in a prescribed form and adhere to certain safeguards, which would include provision that they be entered into at least twenty eight days before the wedding.

Divorce without a pre-nuptial agreement

In the event that you decide to divorce and there isn’t a pre-nuptial agreement in place, you may struggle to make arrangements.  “If this is the case, then it is likely you will need to consider Family Mediation,” concludes Sam.  “Mediation is a highly effective way of resolving disputes if you cannot reach an agreement on what happens with your finances or your property, and also arrangements for your children, such as where they may live. Having a pre-nuptial agreement could help avoid this, but can assist with avoiding Court in the first place.”

Our Family team has years of experience in helping couples understand their options ahead of their marriage through a pre-nuptial agreement, as well as their position if it does come to an end and you are looking for a divorce lawyer or assistance through Family Mediation.  To discuss your situation with Sam or a member of the team, contact us today on 023 8071 7431 or email samanthamiles@warnergoodman.co.uk.  

ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article