Prenuptial agreements, once the preserve of the super-rich, have become an increasingly common feature in the UK courts. Those with substantial wealth and those who have been married before, have children from another relationship, or who simply take the view that to agree on financial matters at a time when the relationship is strong, i.e. ahead of marriage, is far more prudent than when its breaking up and parties are less agreeable. Regardless of the reasons for obtaining a prenuptial agreement, there still remains some question as to their enforceability in the UK court when it comes to divorce.
The landmark 2010 case of Radmacher v Granatino has paved the way for prenups to become binding in England and Wales so long as they are not proven to be ‘unfair’. In all cases, prenuptial agreements must satisfy some basic criteria such as that they are entered into freely by both parties, that both have received independent legal advice, that full financial disclosure has been achieved ahead of any agreement and that the agreement is made in good time ahead of the marriage.
In setting out their decision, the Supreme Court provided additional context to help define the notion of ‘fairness’ when it comes to prenuptial agreements. Unsurprisingly, should the agreement prejudice the reasonable needs of any child of the marriage, it would be deemed to be unfair, as would a failure to meet a party’s ‘needs’. As the agreement is unlikely to set out every circumstance that could materially change the need of a party, it is always wise to revisit the agreement in the event of a major life changing event - for example - should one party give up work to care for the other during a period of illness, or if children are born, or if a former homemaker becomes a breadwinner or vice-versa.
In the event that the court found the agreement to be unfair, it may amend it, rather than abolish it altogether, to redress the balance of fairness.
Further Prenuptial Agreement Information
If you would like to find out more about prenuptial agreements, please download our Client Guide to Prenuptial Agreements or see our recent blog posts on the subject:
Talk to us about your requirements for a prenuptial agreement by using the contact form on this page.