The law in England and Wales relating to pre-nuptial agreements is a little complicated. The overarching principle is that no agreement between the parties – whether a pre-nuptial agreement or anything else – can override the ability of a judge to determine the appropriate division of assets on a divorce. However the judge making that determination has to consider “all the relevant circumstances of the case”, and the existence of a pre-nuptial agreement is certainly a relevant circumstance.

There was a significant case about prenuptial agreements in 2010 (called Radmacher -v- Granatino). This case says that if a pre-nuptial agreement is freely entered into by both parties, with a full appreciation of its consequences, then the parties should be held to that agreement unless it would not be fair to them to do so. After this case, the Law Commission did a report about what an enforceable pre-nuptial agreement might look like. This has not been made into law (yet), but it is good practice to follow these recommendations so that if it is made into law later on, your pre-nuptial agreement has the best chance of being enforceable.

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The procedural elements of a pre-nuptial agreement that should be followed to make the agreement as enforceable as possible include:

• It must be entered into freely, so neither party should be mistaken, under duress, unduly influenced, or subject to misrepresentation. Also, there should be no unconscionable conduct; so one party should not exploit a dominant position to their advantage or subject the other to coercive or controlling behaviour.
• It should be negotiated as far in advance of the wedding as possible. The Law Commission recommends that the final signatures should take place no less than 28 days before the wedding date.
• The parties should recognise the seriousness of the agreement, intend to be bound by it, and expect to be held to it. Both parties should fully understand the implications of the pre-nuptial agreement and what effect it might have on a future divorce. Both parties should receive professional family law advice.
• Both parties should provide full financial disclosure to accompany the agreement, so that there is context for the negotiations and so the parties know what claims they might be giving up.
• The agreement should be executed as a deed.

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In terms of whether the contents of the agreement are fair, there are some guidelines from the Supreme Court:

• It would not be fair for a pre-nuptial agreement to fail to make provision for the reasonable needs of any children of the family. This is why most pre-nuptial agreements provide that in the case any or further children are born or adopted, the agreement should be reviewed.
• The longer a marriage lasts after a pre-nuptial agreement, the less fair it might be to hold the parties to its terms. Again, this is why most pre-nuptial agreements will include a regular review clause (perhaps every five or ten years).
• If the effect of the pre-nuptial agreement would be to leave one party with less than they reasonably need but the other comfortably provided for, then this is likely to be unfair.
• If one party has an argument for compensation (such as giving up a high-powered career on a joint decision), and the agreement does not provide for this, then it is likely to be unfair.

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Therefore if your pre-nuptial agreement follows the procedural requirements and is fundamentally fair, providing for the needs of both parties and any children and any compensation element, it is likely that a court would give it decisive weight. Therefore it is extremely important when you are considering a pre-nuptial agreement to get specialised legal advice to make sure all of these conditions are met. If you think we might be able to help you with this, please do not hesitate to get in touch with Alison Cole on 01293 596947.