Prenuptial agreements were once considered exclusive to the rich and famous. However, they are becoming increasingly popular in wider society, with the average age of those entering into pre-nuptial agreements decreasing in recent years.
This article considers the reasons for this change and whether or not pre-nuptial agreements really are a good idea.
What are pre-nuptial agreements?
A pre-nuptial agreement is a legal document agreed by a couple prior to marriage. It attempts to regulate how the couple deal with their financial arrangements during the marriage and in the event of the marriage breakdown.
RECOMMENDED READING:
What is their legal status?
Pre-nuptial agreements are not legally binding. It is not possible to oust the jurisdiction of the court. This means that upon divorce, if one spouse seeks to contest the terms of the pre-nuptial agreement, the court has jurisdiction to consider the matrimonial finances and make a financial order that is different to the terms of the pre-nuptial agreement. The court will treat the pre-nuptial agreement as one of the relevant factors that it is required to consider.
However, in the landmark case of Radmacher v Granatino in 2010, the Supreme Court decided that the court should give effect to a pre-nuptial agreement if it is freely entered into, with a full appreciation of all the facts, unless it would not be fair to hold the parties to the agreement. There remains judicial discretion as to what is considered to be fair.
How much do we like them?
According to a recent YouGov survey, 55% of those surveyed are in favour of pre-nuptial agreements, which is an increase of 13% from 2 years ago. Perhaps unsurprisingly, those who had already been through a divorce, are the most likely to support pre-nuptial agreements. The average age of those entering into prenuptial agreements has reduced to 30 years old.
The company logo (Image: Pic supplied)
The benefits
Pre-nuptial agreements can provide for the protection of pre-acquired wealth, for example, property purchased years before entering into the relationship. This is relevant when couples marry later in life, and in second marriages, where one or both parties may have children from previous relationships who they wish to pass on their wealth to.
If a party to the pre-nuptial agreement has separate business interests, or there is a family business, then the terms of the agreement can provide clarity as to how these interests are to be dealt with in the event of the marriage breakdown.
Pre-nuptial agreements can also set out to safeguard family assets that may have been passed as gifts and inheritance. This is important when a party seeks to protect assets that have been in their family for generations.
Reform
As far back at 2014, the Law Commission recommended a change in the law so that ‘qualifying nuptial agreements’ are legally binding and enforceable in England and Wales. Resolution, the membership organisation for family lawyers and other professionals, continues to call for a change in the current law so that pre-nuptial agreements are binding with suitable safeguards. Despite this, there are no imminent plans for the reform of the legal status of pre-nuptial agreements.
And finally
In summary, if you are seeking to protect assets and/or reduce the possibility of conflict in the event of a marriage breakdown, then pre-nuptial agreements can be a good idea. However, it is always important to contact a nuptial specialist who can provide advice based on your individual circumstances. In addition, it is vital to obtain wider advice on the tax and inheritance implications. Consideration should also be given to making a Will to reflect the terms of the pre-nuptial agreement.
How we can help
At Ware & Kay Solicitors, Samantha Sinclair, Head of Family Law, is highly experienced in advising on and drafting tailored prenuptial agreements. Known for her calm, clear, and practical approach, Samantha ensures every agreement is both fair and robust—giving you peace of mind as you begin this new chapter.
To speak with Samantha about protecting your future, get in touch today on York 01904 716000 or email samantha.sinclair@warekay.co.uk.
