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An agreement between parties

A couple planning to marry or enter civil partnership may wish to negotiate an agreement to show what they intend to happen with their money and property if the marriage or civil partnership later breaks down, i.e. a pre-nuptial agreement. It is important to confirm that pre-nuptial agreements are not entirely binding in the Courts of England and Wales and are only considered as persuasive and part of the overall circumstances of a case. Therefore, unless the agreement has been entered into correctly, complying with a set of strict rules and requirements, the agreement itself may not be followed by a Court in the event of divorce and related financial proceedings.

The law

The law in this area comes from the usual laws that govern the split of finances on divorce and also the decision of the Supreme Court in the case of Radmacher v Granatino 2010 where the Court stated ‘The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement’

How to ensure the agreement is legally enforceable

So what requirements must be adhered to, to ensure a pre-nuptial agreement is followed and upheld by a Court?

To show the Court that the agreement is fair, it is necessary for each party to provide financial disclosure which will involve each party setting out (with documentary evidence), their current financial position. This way the agreement can be viewed overall based on the parties’ current circumstances. It will be necessary to show the Court that the agreement reached will meet ‘needs’ for example that each party will be able to rehouse themselves and that they are both able to meet their own living expenses. An agreement is unlikely to be followed if it leaves one party in financial difficulty or if it does not take into account the needs of any children. The parties must also obtain full independent legal advice on the agreement and ideally the parties should enter into the agreement in good time before the wedding (ideally a minimum of 28 days before). By allowing a reasonable length of time before the ceremony, this avoids there being any suggestion of undue influence or pressure being applied.

Agreements are far more likely to be considered as fair if they are recent or if circumstances remain unchanged since the agreement was entered into. It is common to include provision for the agreement to be reviewed at a specific time, for example every five years or upon the happening of a certain event such as the birth of a child or if one party becomes incapacitated and is no longer able to work.

Word of warning

It is not possible in England and Wales to enter into a fully binding agreement before a marriage or civil partnership and specialist legal advice should always be obtained. Notwithstanding, an agreement should never be entered into unless the parties intend to be bound by the terms. It may be possible to enter into a binding agreement in other countries if there are properties held abroad or if there is any other kind of international element and it may therefore be necessary to involve other specialist lawyers in the relevant countries.

Whether it is in the best interests of a party to enter into a pre-nuptial agreement will depend on the circumstances and whether they are the stronger or weaker party financially. Here at Curwens, we have specialist family solicitors who are able to provide advice on pre nuptial agreements and the implications of entering into one. Contact our family department today on 0808 164 9951 or email This email address is being protected from spambots. You need JavaScript enabled to view it..

Please note that this blog does not constitute specific legal advice.