What’s a prenuptial agreement?

In England and Wales, a prenuptial agreement, also known as a ‘prenup’, is a legal agreement made by a couple before they get married or enter into a civil partnership. It sets out how their assets, property, and finances would be divided in the event of a divorce or separation.

The main purpose of a prenuptial agreement is to provide clarity and protection for both people involved. It allows couples to make decisions about their finances and assets in a fair and transparent way, rather than relying solely on the legal procedures in place on divorce, which are clouded by uncertainty.

In a prenuptial agreement, couples can outline how their assets and debts should be divided if they separate in the future. They can also include any special arrangements for property, businesses, or investments. This is also known as ‘ring fencing’ certain assets. The agreement may address issues such as spousal maintenance, division of joint bank accounts, and ownership of properties acquired before and during the marriage or civil partnership.

Are prenuptial agreements legally enforceable?

It's important to note that prenuptial agreements are not automatically legally binding in England and Wales. However, they are given significant weight by the courts, especially if they are fair and both people entered into the agreement willingly, with full understanding, mental capacity, and without any external pressure.

To give weight to a prenuptial agreement, both people must provide full financial disclosure and seek independent legal advice and must not have been entered into the agreement within 28 days immediately before the marriage or civil partnership ceremony. It is recommended to consult with a solicitor who specialises in family law to draft and review the agreement to make sure that it meets the necessary legal requirements and protects the interests of both individuals.

While prenuptial agreements can provide guidance and security, it's also important to remember that they cannot override the courts' power to make decisions based on what is deemed fair in each specific case. There is no defined formula for dividing assets on divorce or dissolution, and a judge will always consider the welfare and needs of any children involved as a top priority.

In short, if there’s not enough to go around to meet the needs of both people and any children, then assets that have been ringfenced for one person in the prenuptial agreement, may have to be shared as part of the divorce/ dissolution settlement.

Summary: what is a prenuptial agreement?

Prenuptial agreements are becoming increasingly common in England and Wales, as a way for couples to outline how their assets and finances would be divided if their relationship were to end. Whilst not automatically legally binding, they are viewed as persuasive evidence in court proceedings and provide a level of financial certainty as well as reduce potential conflicts if divorce or dissolution proceedings were to unfold in the future.

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