Prenuptial agreements are commonplace in the US and Europe, but while couples in the UK are able to set up this type of agreement before they marry, they’re not always recognised in court.
So what is a prenuptial agreement? And what is its legal status in the UK? Howells Solicitors examines this much debated issue, to give you the overview you need to make an informed decision before you get married.
What is a prenuptial agreement?
A prenuptial agreement is an agreement entered into by a couple who plan on getting married that details what would happen to their financial matters in the event of their divorce. They are used as a means of protecting wealth should a marriage go wrong, particularly in cases where one partner brings more in the way of assets to the marriage than the other.
Prenuptial agreements have only recently entered UK law, following a four year legal battle involving a German heiress, Karin Radmacher, worth £100million, and her ex-husband, academic Nicholas Granatino. In 2010, at the end of their divorce case, the court ruled in favour of Miss Radmacher protecting her fortune according to the prenuptial agreement signed by Granatino before their marriage.
In relation to the case, Court President Lord Phillips stated that “the law cannot prevent a couple deciding how to arrange their affairs should the come to live apart, and that all English courts should follow the precedent”.
The state of prenups in UK law
The law in the UK currently states 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 the agreement.”
In essence, this means that if the agreement is considered fair, then the court will uphold it, but if the court decides that the agreement doesn’t address the needs of the either partner or any children involved, these needs will be considered more important than the terms of the prenuptial agreement.
However, a recent report from the Law Commission, entitled Matrimonial Property Needs and Agreements, included a draft Bill to ensure that they are formally recognised as legal documents in the UK. This Bill would enable married couples and civil partners to make a legally binding agreement about how their property or finances should be shared should their relationship come to an end.
The Bill, according to Professor Elizabeth Cooke, Law Commissioner for property, family and trust law, has built-in safeguards to protect either party from hardship, and to prevent either party from escaping parental responsibility or from becoming a burden to the state.
How to create a prenuptial agreement
Any couple contemplating marriage or civil partnership can enter into a prenuptial agreement. Whist it is possible to use a template agreement and not involve a solicitor, this is highly unadvisable as there is no such thing as a ‘one size fits all’ prenup.
Should you wish to enter into a prenuptial agreement, both parties should seek independent legal advice from a family solicitor and it professionally arranged to reflect their best interests. This will ensure that the agreement complies with UK law and means claims that either party was acting involuntarily will be avoided in the future.
Howells Solicitors handles enquiries on a regular basis from people getting married who are looking for advice on whether or not they should consider a prenuptial agreement. We have a specialised team of solicitors who are happy to provide the advice and assistance you need.
If you would like to discuss whether a prenuptial agreement is right for you, please call us on 0808 178 2773 and we would be happy to discuss your options.
