Should I Get a Prenuptial Agreement?
Robin Williams once said that divorce was ‘from the Latin word meaning to rip out a man's genitals through his wallet’, of course, he had not thought of prenuptial agreements.
If you have been married before though, or have substantial assets, you might be thinking that caution is necessary. After all, the sad reality is that 1 in 4 marriaged end in divorce. Perhaps you have had a messy divorce in the past, or want to ensure that should anything happen to you, your children will inherit your house in its entirety. You should be forgiven for thinking that precaution by way of a prenuptial agreement is necessary.
What is a prenuptial agreement?
Put simply, a prenuptial agreement is a formal, written agreement between two partners entered into before getting married.
It is essentially a contract, setting out ownership of all their belongings and explains how these will be divided should worst come to worst and their marriage break down.
Why should I get a prenuptial agreement?
There are many reasons people request prenuptial agreements. Some wish to keep certain assets that have been in their family for generations and ensure they stay in their family. Others wish to protect assets to leave to children they might have of a previous marriage, without fear of those assets being interfered with on divorce. Other simply wish to ensure that the fruits of their labour remain securely their own.
When one divorces with no prenuptial (or postnuptial) agreement, they are at risk of losing up to 50% of all of their assets to their divorcee. It can be difficult to trace after 10 years of marriage what belongs to whom and judges can have discretion in determining this.
Are prenuptial agreements legally binding?
In short, no, prenuptial agreements are not automatically legally binding. The parties to a prenuptial agreement cannot override the court’s discretion to decide how to redistribute their assets and income. When considering an application for financial remedy, the court must, however, give appropriate weight to a pre-nuptial agreement as a relevant circumstance of the case when considering the factors set out at section 25 (opens new window) of the Matrimonial Causes Act 1973.
The law relating to prenuptial agreements has developed following the Supreme Court decision in Radmacher v Granatino in October 2010. The key points of the current law are as follows:
- When considering the role of a prenuptial agreement in a financial claim on divorce, the starting point is the relevant legislation, which is the Matrimonial Causes Act 1973. Section 25 of that Act obliges a judge to consider all the relevant circumstances of the case when deciding how to divide the parties’ finances on a divorce.
- No agreement between the parties can override the legislation or prevent the judge from deciding on the appropriate division of assets on a divorce. This means a prenuptial agreement cannot stop a spouse applying to the court for financial provision from the other spouse. Any “waiver” of the right to apply to the court for financial provision in an agreement will not be effective.
- The significance of a prenuptial agreement is as a relevant circumstance of the case, to be weighed by the judge. A prenuptial agreement will have a substantial impact on the judge’s decision in many cases. The Supreme Court said in Radmacher v Granatino that the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement.
You will appreciate from the above explanation that, as the law currently stands, pre-nuptial agreements are almost as good as binding, provided they are fundamentally fair.
What is needed to make a prenuptial agreement the best chance of being effective?
Following the Supreme Court guidance in Radmacher v Granatino  UKSC 42, the following safeguards should be met when drafting a nuptial agreement:
1. Make it in advance
You should both negotiate the terms of the pre-nuptial agreement as far in advance of the wedding date as possible. You will both need sufficient time to consider the terms and receive legal advice about the effect of those terms, so that there is no last minute pressure on either of you as the wedding day approaches.
2. Seek advice
You should both fully understand the implications of the agreement:
You should both receive specialist family law advice sufficiently in advance of the wedding, ceremony or planned signing date to allow time for proper negotiations.
You should both make financial disclosure setting out your assets, income and potential assets (such as inheritances and any interests you may have). When you are aware of your partner’s financial situation, you are ready to begin to negotiate the terms of the agreement.
4. Free will
It is important that you can show the agreement was freely entered into. This means that you must enter the agreement without any pressure from each other or anyone else.
As mentioned the prenuptial agreement must be "fair". Broadly this means the agreement must ensure that:
- both parties' financial needs are met;
- the needs of any existing or future children are not prejudiced
- no substantial hardship is caused;
- any potential compensation claim is addressed; and
- any property argued to be non-matrimonial and not subject to the sharing principle is clearly defined in the agreement.
I am already married, am I too late for a prenuptial agreement?
Well, yes. But you can still get a postnuptial agreement which effectively has the same legal impact. People enter into postnuptial agreements if they did not get a prenuptial agreement in time before their wedding, or if they unexpectedly come into family assets.
How can we help
We have over 45 years of experience at Sugaré and Co and are able to offer a free initial consultation. We have the knowledge and expertise to advise you in getting a prenuptial agreement.
If you would like to discuss prenuptial agreements in more detail, please get in touch with our office on 0113 244 6978 or contact us via the online booking form