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Are Pre-Nuptial Agreements Legally Binding?

Pre-Nuptial Agreements are not legally binding in England and Wales.  However, Courts seem to be more willing to take them into account when:-
•         both husband and wife or civil partners have had independent legal advice about the Pre-Nuptial Agreement;
•         there was full financial disclosure from both parties;
•         the Pre-Nuptial Agreement was signed some time before the marriage or civil partnership.
The delay between signing the Pre-Nuptial Agreement and marriage or civil partnership avoids one partner arguing that they were forced to sign the Pre-Nuptial Agreement otherwise the marriage or civil partnership would have been cancelled or postponed.
Courts have significant discretion in deciding how to divide assets on divorce or separation so although Pre-Nuptial Agreements are not legally binding, a court will use an agreement drawn up under the above conditions as a guide.

Why have a Pre-Nuptial Agreement?

Pre-Nuptial Agreements can be used to set out rights and obligations over property and finances by a couple if their marriage or civil partnership is dissolved.  Pre-Nuptial Agreements are worth considering:-
•         If one or both partners have children from a previous marriage or relationship – a Pre-Nuptial Agreement can be used to protect any money set aside for those children, e.g. money towards further education, so that this money is not treated as a marital asset to be divided between partners.
•         To protect assets earned before the marriage for parties entering a marriage or civil partnership later in life where both have independently-earned wealth, a Pre-Nuptial Agreement may help protect those assets where the agreement allows for a reasonable distribution of assets earned during the marriage or civil partnership.

Pre-Nuptial Agreements must consider future events

In drawing up a Pre-Nuptial Agreement care must be taken that future events that may need to be taken into consideration should the couple later separate are allowed for.  This is particularly important if one partner is likely to earn significantly more than the other or there are plans for one partner to work part-time or give up work either after having children or to support the other partner’s career.  A court is more likely to overturn a Pre-Nuptial Agreement if the agreement does not allow a fair and reasonable distribution of assets, particularly after a lengthy marriage.
Pre-Nuptial Agreements must also allow for any future children.  If a couple have children after marrying or civil partners adopt and the Pre-Nuptial Agreement does not outline what financial arrangements should be made for those children if the couple separate, then the Pre-Nuptial Agreement is likely to be overturned.  Courts have to act in the best interests of the children.
It is strongly recommended that couples interested in drawing up a Pre-Nuptial Agreement seek legal advice before doing so.  At Lawson-West we will advise you on any potential future problems your pre-nuptial agreement may have and suggest solutions according to your personal circumstances.  If you wish to discuss pre-nuptial agreements, please contact Alistair Dobson in Market Harborough on 01858 445480, James Haworth in Leicester on 0116 212 1000 or Sarah Townsend or in Wigston on 0116 212 1080 now or complete one of the on-line forms. You could also access advice by visiting one of our free walk-in clinics.
If you are thinking about living together or cohabiting, please see our pages on Living Together and Cohabitation, Living Together Agreements and Civil Partnerships.

Please note this will be kept in strictest confidence and is required solely to ensure we do not have a conflict of interest according to SRA regulations. The party WILL NOT be contacted by Lawson-West.