Pre-nups – how do they stand up in UK courts?

March 27, 2017

Pre-nups – how do they stand up in UK courts?

For many years, pre-nups were considered the preserve of the rich and famous – usually in America. But seven years ago, a landmark case suggested they’d finally be taken seriously by UK courts. In what’s known as the Radmacher case, judges ruled that while financial settlements are determined by the court, ‘appropriate weight’ must be given to the terms of a pre-nuptial agreement.

The ruling has brought mixed success. Some claim it’s ensured pre-nups have meaning – others claim they remain completely unenforceable due to the fact the court must still decide if they are deemed ‘fair’.

To add to the confusion, earlier this week, a Supreme Court judge caused a stir by calling for cast iron pre-nups in a speech at Bristol University. Lord Wilson suggested couples should be able to enter into a pre-nuptial agreement before they marry without fear that a court will overrule them, saying that it is patronising to tell couples that they cannot decide before their wedding how to behave should they break up.

While still not automatically enforceable in England and Wales, pre-nups are increasingly being upheld – provided they are voluntary, drawn up by couples who have legal advice, and are ‘fair’.

Designed to bring clarification, certainty and protection to the marriage, a pre-nup agreement must be entered into a least 21 days before the marriage. Parties must enter freely into the agreement and not under duress, fraud, undue influence, mistake or misunderstanding.

They must also appreciate the implications of the agreement. They must be in possession of all the information; which means that if a couple is entering into financial disclosures they must be aware of each other’s financial position, taking independent legal advice to ensure they fully understand what this means.

If a pre-nup is going to be challenged, a judge will look at whether or not each of the above terms were met. It will then decide if the agreement is ‘fair’ by considering:

• The (reasonable) requirements of any child.
• The autonomy of adults – the court should not override the terms of an agreement simply on the basis that “the court knows best.”
• The ring-fencing of non-matrimonial assets and inheritance.
• The length of the marriage – the longer the marriage lasts following the signing of pre-nup the greater the chance it may not be fair to hold the parties to its terms because an agreement cannot cover all contingencies. For example, something could occur within a marriage that leaves one party in real financial need – a circumstance which was impossible to predict at the start of the marriage.

Many people we have represented have either fallen victim to the myth that a pre-nup is set in stone or they don’t believe it carries any weight at all. But, if done correctly, they can provide a great deal of protection to both parties within a marriage.

The confusion surrounding pre-nups means they are an area of law that can be stressful, costly and unpredictable. The best thing any couple can do is to ensure they have a clear understanding of what they represent, seek independent legal advice from the beginning, and consider how the terms will stand from the court’s perspective, as well as their own.

If you need any advice on pre-nuptial agreements, please contact our Matrimonial team at Tayntons for expert legal advice on 0800 1584147.

Sandra Waller, Legal Executive