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Pre-nuptial agreements: what are they and why consider one?

With the news of reality TV star turned businesswoman, Kim Kardashian West, filing for divorce from billionaire rapper, Kanye West, fresh in the headlines and the much speculated contents of the parties’ pre-nuptial agreement, we consider the purpose, effectiveness and also the benefits of pre-nuptial agreements here in England.

A pre-nuptial agreement (often referred to as a ‘pre-nup’) is, as the name would suggest, an agreement which is entered into by both parties in contemplation of and prior to marriage. The agreement is a formal, written agreement which dictates how property and assets accrued before the marriage are to be divided in the event that the marriage breaks down.

Whilst some may perceive pre-nuptial agreements as being pessimistic and ‘unromantic’, they can be a very useful tool for couples who wish to protect and retain control over their respective assets.  The agreements are to try to reduce potential animosity in future divorce proceedings, should the marriage subsequently break down. For example, you may wish to consider entering into a pre-nuptial agreement if you have numerous properties, substantial savings, inheritance accrued prior to the marriage (or anticipated future inheritance), business or alternate investment ventures, or a significant pension fund. The list is non-exhaustive and is dependent upon the individual circumstances of each couple. It is also worth noting that a pre-nuptial agreement can deal with the issue of pre-marital debt and how this is to be treated upon divorce.

The effectiveness of pre-nuptial agreements is often questioned as they are not legally binding and are, therefore, not legally enforceable. However, the landmark case of Radmacher v Granatino [2010] has resulted in Judges giving increased weight to pre-nuptial agreements in financial remedy proceedings provided that certain criteria are met. Firstly, both husband and wife must have entered into the agreement voluntarily without undue influence or pressure and be fully aware of its implications with the intention that the agreement should govern financial arrangements following the breakdown of the marriage.

For example, in H v H [2016], the parties entered into a pre-nuptial agreement before beginning their very short marriage. Prior to signing the agreement, the wife had received extensive legal advice and the Court, therefore, applied the full weight of the agreement as it was clear that the wife had full knowledge of the consequences of the agreement that she had voluntarily entered into.

However, parties should note that a pre-nuptial agreement will not be upheld if it in any way prejudices a child of the family or if the circumstances since making the agreement have changed so drastically that it would no longer be fair to a party. Similarly, if it appears that one of the parties was not fully aware of the implications of entering into the agreement, the Court will generally give little-to-no weight to the agreement (B v S (Financial Remedy: Martial Property Regime) (2012)). This can, of course, be avoided if both parties seek extensive legal advice prior to entering into a pre-nuptial agreement to ensure that each are fully aware of the consequences and implications of such.  

It is clear that a pre-nuptial agreement, if prepared and entered into correctly, can be effective in England. A pre-nuptial agreement can assist parties in avoiding extensive litigation, legal costs, time and emotional stress, of all which are associated with acrimonious financial remedy proceedings in the event that the marriage breaks down . It is incredibly important that all aspects of the agreement are covered in meticulous detail and tailored to each individual’s specific needs and circumstances to ensure that adequate protection is provided.

For further information in respect of the above, please contact Tilly Bailey & Irvine Solicitors and speak to a family law expert on 0333 444 4422 or make a free online enquiry.