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10 September 2019

Nuptial agreements – where are we now?

As the couple finalise their big day, from flower arrangements to table plans, they may have overlooked one crucial and wholly practical detail, the prenuptial agreement.

Since a landmark Supreme Court judgment in 2010, prenuptial agreements have risen in popularity, particularly for those embarking on second marriages or where one party has significant family wealth or inheritance they wish to protect, in the event of the relationship breaking down.

In the throes of love, couples may find conversations about such an agreement awkward and unromantic but, given that the UK has one of the highest divorce rates, it cannot be ignored.

Whilst it is not possible to make a nuptial agreement that is immune from modification by the courts, case law makes it clear that the autonomy of adults should be respected and that a properly prepared nuptial agreement (prepared prior to the marriage or even years thereafter) will be accorded significant weight in financial proceedings, unless it would be considered ‘unfair’ to hold the parties to it.

Whilst every case will turn on its own facts, recent case law has emphasised that a fair agreement must be one which gives consideration to each party’s needs and the needs of any children of the marriage. Agreements should therefore be drafted carefully so as not to prejudice the reasonable requirements of any children, or leave one party in a ‘predicament of real need’.

A nuptial agreement will be undermined unless it is freely entered into by each party with the benefit of independent legal advice and with full and frank financial disclosure.

Prenuptial agreements should ideally be signed at least 28 days before the marriage; don’t, therefore, forget to add it to your wedding ‘to do’ list. Once completed, feel free to relax and raise a glass to happily ever after!

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