Is a pre-nuptial agreement binding in the UK ?

Unfortunately, whilst in many States in the USA pre-nuptial agreements are binding on individuals as the marriage breaks up, it is not yet quite the same in the UK , although many feel that the UK will eventually follow USA law. Previously the UK courts, when dealing with a divorce, gave little consideration to a pre-nuptial agreement. Now the courts are taking them into consideration.

To determine how closely the terms of the agreement are adhered to the court will now consider:

• Was there a full and frank disclosure of both parties’ financial circumstances and assets before they entered into the agreement?
• How long before the wedding was the agreement signed? (Obviously the court won’t want it to be on the wedding day, because it may reflect pressure on one or both parties.)
• If it was some time before the wedding, they will consider whether since the agreement, but before the marriage, the financial circumstances of one party changed (e.g. a salary increase, one party took a career break to care for the parties’ child, etc); ideally not less than 21 days before the wedding but not more than about three months before either.
• Following on from above, what significant changes have there been since the agreement was signed? for example again salary increase, etc, but also the length of the marriage and the health and wealth (e.g. one party inherited from parents) of both parties.
• Was any pressure (emotional or financial) placed on either party before they signed the agreement? (Pressure could be from the other party, but could also be from relatives, etc, too.)
• Did both parties or either party get any independent legal advice before they entered into the agreement? (There is likely to be less consideration of the agreement by the court if one party did and the other did not.)

Increasingly the existence of a pre-nuptial agreement will influence any Order that a Court makes on the dissolution of a marriage or breakdown of a relationship.

Why?

Even though they are not binding on the UK court increasingly people are entering into them because they are seen as a protective measure.

They can help protect:

• a family business
• children
• assets from a previous marriage
• assets held abroad
• the marriage by laying down the financial expectations with full disclosure at the outset