We are often asked, is a prenuptial agreement worthwhile?  Couples seeking to protect assets gained prior to their forthcoming marriage, often consider a prenuptial agreement, but have concerns about whether it will be upheld.

Here, Kathy Scoot, Family Solicitor at HRJ Foreman Laws Solicitors talks about prenuptial agreements and whether it is the right approach for you.

What is a prenuptial agreement?

A prenuptial agreement is a formal document signed by a couple before they marry or enter a civil partnership. It sets out how the couple wish their assets to be divided if they were to divorce or have their civil partnership dissolved.

There are several reasons why couples choose to create a prenuptial agreement, these include:

• One or both parties wish to protect assets built up prior to the marriage.
• They wish to clearly state what is to happen to any assets acquired during the marriage or civil partnership.
• There are family trusts and or inheritance plans that need to be considered.
• There are debt obligations.

Are prenuptial agreements binding in England and Wales?

Whilst prenuptial agreements may be automatically enforceable in other countries, this is not the case in England and Wales. However, a professionally drafted and executed prenuptial agreement is likely to be persuasive to the court.

There are reported cases where a judge has considered a prenuptial agreement to be unfair and therefore will not consider it during a settlement case. The key word here is ‘fair’.  Fairness is always the Court’s key consideration, and it will always seek to protect the needs of both parties.

How can couples try to ensure the prenuptial agreement is upheld?

We have already highlighted that ‘fairness’ is a key principle of a prenuptial agreement. This means it should meet the needs of the couple and any dependent children (current or future).

The agreement must also be prepared in good time before the wedding to allow both parties to receive legal advice. The Law Commission report deals with Qualifying Nuptial Agreements and recommends that the prenuptial agreement should be entered into at least 28 days prior to the wedding.

In addition:

• The agreement must be capable of being enforced contractually.
• The terms of the agreement must be fair and reasonable.
• The parties must enter into the agreement of their own free will, if there is any evidence of undue influence or duress, it is highly likely that the agreement will not be upheld.
• The agreement must be signed or executed as a deed.
• Both parties should provide full and frank financial disclosure.
• It is imperative that both parties obtain independent legal advice.

I need a prenuptial agreement quickly, what can I do?

It is essential that a prenuptial agreement is entered into at least 28 days prior to the wedding.  If you do not have enough time before your wedding, it is possible to enter into a postnuptial agreement at any point after your marriage.   Talk to one of our family solicitors to determine the best option for you.

Amicably creating an agreement between both parties, can save a lot of stress and legal costs in the future, if the marriage were to breakdown. It means couples have a clear understanding on the division of assets, and both are happy with the arrangements.

Video – Roger Weller Senior Associate Solicitor, from HRJ Foreman Laws Solicitors answers some of the most popular questions about prenups. 

To make an initial appointment with one of our family solicitors to discuss your prenup:

• Email info@hrjforemanlaws.co.uk
• Call Hitchin 01462 458711, Welwyn Garden City, 01707 887700,
• Complete our contact form here

Meet the team

Kathy Scoot, Partner and Family Law Solicitor

Roger Weller, Senior Associate Solicitor, Family Law

Vyonne Manuel, Associate Solicitor, Family Law

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