Confidently Secure: Will my Pre-Nuptial Agreement be Upheld on Divorce?

There is a widespread misconception that nuptial agreements are disregarded by English and Welsh courts in financial proceedings in connection with divorce. Nuptial agreements (pre- and post-nuptial) play a pivotal role in shaping financial settlements on divorce in many cases. 

Pre-nuptial agreements are formalised before marriage or a civil partnership, outlining asset distribution in the event of divorce. Post-nuptial agreements are entered into after marriage or civil partnership. Despite their prevalence, these agreements are not inherently binding, and the court exercises discretion, as highlighted in the 2010 landmark case of Radmacher v Granatino.

Nuptial agreements are increasingly entered into by couples who wish to record their future financial settlement, setting out now how finances will be divided in the event of their divorce.  In a time where second (or subsequent) marriages are common, many more people are coming to marriage with pre-acquired or inherited wealth which they wish to protect against claims from their spouse in the event of divorce.

However, contrary to popular belief, nuptial agreements aren’t automatically binding. The court may enforce them if the agreement was freely entered into and is deemed fair, and depending on other provisions being in place.

‘Fairness’

Drawing from precedent cases such as White v White [2000] UKHL 54, Miller v Miller and McFarlane v McFarlane [2006] UKHL 24, the courts emphasise:

• Parties’ needs – considering financial and housing requirements, age, and earning capacity.  Nuptial Agreements are more likely to be upheld if they meet the parties’ needs. 
• Financial disparity – addressing differences in financial situations, especially if one sacrifices a career for the family.
• Sharing – recognising equal entitlement to partnership assets.

Validity of Pre- and Post-Nuptial Agreements

In February 2014, the Law Commission published Consultation Paper 343: Matrimonial Property, Needs and Agreements.  It set out a framework recommending how nuptial agreements could be made legal binding. 

For a nuptial agreement to be valid and likely to be upheld (a “qualifying nuptial agreement”), it must:

• Be a valid contract
• Be in writing and executed as a deed
• Not be made within 28 days before the marriage
• Include full disclosure – both parties must be aware of each other’s financial circumstances
• Not have been entered into under any undue influence or pressure

In addition, both parties must have received independent legal advice.  It is also important that the nuptial agreement is reviewed periodically or in the event of any significant event such as the birth of a child, a spouse’s redundancy or ill health.

Dispelling myths surrounding nuptial agreements is crucial for those navigating the complexities of family law in England and Wales.  If you are seeking to protect your current or anticipated wealth, or simply wish to record now what your financial settlement will look like on divorce, then please contact our Family Law Team who would be happy to assist you.