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What is a Prenuptial agreement and should you agree one before marrying?

Simon Higgs, relationship breakdown

Family law expert and associate solicitor Simon Higgs answers some frequently asked questions about Prenups and what they could mean in a marriage.

What is a Prenup?

A Prenup is an agreement parties enter into with the objective of recording ownership of capital (money, investments, assets and property) and what will happen in the event of the breakdown of the marriage.

Typical scenarios where a couple might enter into a Prenup are where one party is bringing more capital into the marriage or there is a future inheritance to protect and that party wants to retain that capital in the event of the marriage breaking down.

Are they legally binding?

Historically, the Courts in England and Wales did not recognise Prenups, holding they were against public policy due to undermining the institution of marriage.

Many other countries however have long recognised and upheld marital agreements and in recent years the Courts, perhaps recognising the growing appetite amongst the public for Prenups, have been giving more weight to such agreements.

When considering how much weight to attach to Prenups the Courts will have regard to a number of factors including:

  1. Whether the parties disclosed to one another and understood their financial circumstances.
  2. Whether the parties both sought independent legal advice.
  3. Whether before signing the agreement either of the parties was subjected to unfair pressure.

The Courts when dealing with financial matters following the breakdown of a marriage have a duty to consider fairness and the needs of the parties and any children.

Consequently, if the Prenup does not adequality address needs and fairness the Court will not be bound by the agreement.  Put another way, whilst the Courts are now willing to give more weight to such agreements it remains the case Prenups cannot oust the jurisdiction of the Court.

Should you get a Prenup?

Yes, as contrary to the common misconception Prenups are not the preserve of the very wealthy.

Although not romantic, a carefully considered Prenup where the parties have been open and transparent with one another can create a sense of security and provide a solid foundation for the marriage.

Even though in the event of the marriage breaking down there are no guarantees the Prenup will be upheld, it will still provide a certain level of protection as the party who has sought to retain capital by excluding it from the matrimonial pot is likely to end up with a better outcome than would have been the case in the absence of a Prenup.