Prenuptial agreements ” prenup ” are growing in popularity and recently the family court* has reinforced the view that they should be upheld.
There is no specific law saying that a prenup should be adhered to upon separation. In fact, the law does not allow people to enter in to agreements that preclude them from exercising their rights under statute.
However, case law has provided some guidance in the treatment of a prenup and whether they are enforced when parties to a marriage separate/divorce.
The court’s approach is that full effect should be given to a prenuptial agreement that is:
- Freely entered in to
- With full appreciation of its implications
- Unless it would not be fair to hold the parties to it
Therefore, if both parties have entered into an agreement which they both understand and have both taken independent legal advice, it is likely that the agreement would be upheld and the court would not interfere further.
If the outcome of adhering to the agreement would be such that one party would end up in an unfair position, then the court may interfere. For example, if one party ends up homeless or destitute in some way. The court would consider whether that party had a ‘real need’.
Is it worth entering in to a pre-nup?
It is a personal decision. If both parties wish to protect assets and are both willing to agree to it, then it will provide peace of mind that if the relationship were sadly to end, matters will resolve themselves simply without the need for any court battles or wasted money.
Nicola Whitley, specialist family Solicitor says “I like pre-nups. They are clear, to the point and are an opportunity for both parties to lay their cards on the table and declare their respective positions. It may seem unromantic but I think that fighting over assets on separation, especially with children in the middle, makes for a worse outcome than having a pre-considered fall back plan.”
If you would like advice on drafting a pre-nuptial agreement, please contact one of our friendly team today on 023 92 49 29 67.
*Gray v Work [2015] EWHC 834 (Fam)
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