Are pre-nuptial agreements legally binding?

When getting engaged or planning a wedding, discussing what happens if the marriage ends might feel unromantic. However, for many couples, a pre-nuptial agreement can provide financial clarity and protection.

As family law practitioners, we often get asked if pre-nuptial agreements are worth the paper they are written on. In truth, the answer to this question is more nuanced than a simple yes or no.

What is a pre-nuptial agreement?

A pre-nuptial agreement is a legal contract made between two people before they get married. It sets out how assets, property, savings, pensions and debts will be divided if the marriage breaks down.

These documents are often compared to insurance policies, the terms of which are agreed upon whilst you are on good terms, rather than leaving these crucial decisions to be made during what may be an emotionally difficult time.

A pre-nuptial agreement can specify which assets remain separate property, how joint property should be divided, and whether either party should receive ongoing financial support after divorce.

Pre-nuptial agreements can be particularly valuable for couples entering marriage with substantial assets or wealth in their sole names, those who own businesses, or those with significant inheritance prospects.

Are pre-nuptial agreements legally binding? 

In England and Wales, the courts retain the ultimate discretion regarding what happens to financial assets in the event of divorce. A pre-nuptial agreement will only be one of the factors considered when a court exercises its discretion.

That being said, the courts will give significant weight to a properly drafted pre-nuptial agreement that meets certain criteria. If the requirements are met, you should expect to be held to the terms of that agreement in the event you later divorce.  

The case that changed pre-nuptial agreements: Radmacher v Granatino

The landmark case of Radmacher v Granatino in 2010 fundamentally transformed the treatment of pre-nuptial agreements in England and Wales. Before this decision, pre-nuptial agreements received relatively little consideration from the courts.

This case established that the court should give effect to pre-nuptial agreements that are freely entered into by the parties with a full appreciation of the implications, unless it would be unfair to hold the parties to their agreement.

This case significantly elevated the status of pre-nuptial agreements in English law.

Key considerations of a pre-nuptial agreement

When considering what weight to give to a pre-nuptial agreement, the court examines several factors. Getting these elements right is essential if you want to hold your spouse to the terms of your pre-nuptial agreement.

Timing

Timing is important. The agreement should be signed well in advance of the wedding date, and ideally at least 28 days before. Signing a pre-nuptial agreement only days before your wedding raises concerns around whether either party felt pressured to enter into this, or if they didn't have adequate time to consider the implications of what they were entering into.

Financial disclosure

Both parties must provide complete and accurate information about their financial circumstances. This means disclosing all assets, income, property, investments, pensions, debts, and any other relevant financial information before entering into the agreement.

If one party does not disclose assets or provides misleading information, the court may disregard the entire agreement when dividing assets.

Independent legal advice

Each party should receive independent legal advice from their own family law solicitor. Your solicitor should explain what the agreement means, how it affects your legal rights, and whether the terms are fair.

Independent legal advice is helpful evidence to the court that both parties understood what they were signing and that they were entering into the agreement with their eyes open. Without it, a pre-nuptial agreement is more vulnerable to challenge.

How to maximise the weight of your pre-nuptial agreement

If you want your pre-nuptial agreement to stand the best chance of being upheld, follow these guidelines:

• Start the process early. Don't leave it until weeks before the wedding.
• Ensure both parties provide full financial disclosure.
• Both obtain independent legal advice from experienced family law solicitors.

The agreement should be fair and reasonable. In particular, it should address the needs of both parties and any children, and it should not leave one party in a position of financial hardship.

Is it worth putting a pre-nuptial agreement in place?

In most cases, yes. Whilst the family court still retains its discretion, in circumstances where a pre-nuptial agreement has been properly drafted and considered, and the key criteria have been followed, it will be very difficult for your spouse to move away from the terms of the agreement in the event of divorce.