Prenuptial (and Postnuptial) Agreements are not yet legally binding, although they may be upheld if the court is satisfied that:-
- the agreement is properly drafted,
- both parties have received or had the opportunity to receive independent legal advice,
- both parties have given full and frank financial disclosure to each other,
- both parties have entered the agreement at least 21 days before the marriage,
- the agreement takes into account significant changes in the future
- the agreement is fair and realistic.
Since the case of Radmacher in 2010 the courts are taking prenuptial and postnuptial agreements into account as a factor amongst a list of other factors when considering division of the matrimonial assets. Historically, the decision has depended on the judge but now the courts are attempting to give the power back to the parties. Cases show how the courts are attempting to find a balance between granting the parties autonomy over their financial futures and using the court’s discretion to achieve fairness.
This does not mean the parties can agree to ignore the jurisdiction of the court as the fundamental principles of law will always take priority. In the interest of fairness the courts will consider all the circumstances of the case and each case will be judged on its own merit. Lord Justice Thorpe once said “it does seem to me that the role of contractual dealing, the opportunity for the autonomy of the parties, is becoming increasingly important”.
The old myth is being dispelled that prenuptial agreements are only for the super wealthy.
- if you are bringing money and assets to the marriage
- if a partner is bringing significant debts into the marriage
- if you are likely to receive an inheritance
- if you are about to enter a second marriage
You must consider protecting your assets by entering into a prenuptial agreement. If time is short and you cannot have a prenuptial agreement, you should seek advice to have a postnuptial agreement. Without these agreements once you are married, all these assets become joint despite it being in your sole name.
This article was prepared by Manveen Padda in our London office who is a member of our family law team.
If you are considering a Prenuptial Agreement please call 020 8464 4242 for our Bromley team, 01732 446374 for Sevenoaks, 020 7481 6393 for central London or 01483 284567 for our Surrey team. Alternatively email your enquiry to firstname.lastname@example.org. We offer a fixed fee, no obligation one hour interview so that we may provide you with initial advice and suggest the options for your next course of action.