Pre- and Post-Nuptial Agreements: Are they really binding in England and Wales?

Pre- and post-nuptial agreements are an area of family law that often attracts public attention due to widespread perceptions around them and a general lack of awareness and understanding of how they operate in England and Wales.

One of the most common questions we are asked is, “Are pre/post-nups legally binding and enforceable?”

As much as we would like to be able to answer this definitively, the legal framework and case law shows us that it is not a simple “yes” or “no” answer.

So, let’s take a closer look at the law and principles relating to prenuptial agreements to help you better understand this often-misunderstood legal tool.

What is a pre/post-nuptial agreement?

A pre/post-nuptial agreement is a legal document drawn up between a couple before or after their marriage, which sets out how assets and liabilities will be divided between the parties in the event of separation or divorce.

Are they legally binding?

The question as to whether a pre- or post-nuptial agreement is binding must include a careful and thorough analysis of the specific circumstances of each couple’s case.

The leading case in relation to pre- and post-nuptial agreements is Radmacher v Granatino. In this case, it was found that: “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”.

There are factors that the court may consider when either giving more or less weight to a pre- or post-nuptial agreement upon separation. Let’s consider some examples below.

Factors that may increase the weight of a prenuptial agreement:

If there is a short marriage
No children of the marriage
No significant or unforeseen changes in the parties’ circumstances since the date of signing the agreement
If there is a review clause inserted into the agreement which allows for negotiation upon significant changes in circumstance
Parties have been married and divorced previously
Both parties have received independent legal advice in relation to the agreement

Factors that may decrease the weight given to a pre- or post-nuptial agreement:

If there is a long marriage
Children are born during marriage and the agreement is not reviewed following the children’s birth
Significant changes in the parties’ circumstances during the marriage

Timing

Another question frequently asked by clients looking for advice on pre-nups is, “how far in advance do we need to get one?”

Again, this largely depends on the specific circumstances of the parties, but generally speaking, parties should negotiate the terms of the pre- or post-nuptial agreement as far in advance of the wedding date as possible.

This ensures that both parties have enough time to consider the terms and receive independent legal advice in relation to the implications and effects of the terms within the agreement.

Final thoughts

Getting married undoubtedly comes with both excitement but also potential anxiety around the practical arrangements.

While it is not mandatory for parties looking to get married to enter into a pre-nuptial agreement, they can offer peace of mind for those who are interested in protecting themselves should the worst occur.

If you or someone you know is looking to get married soon, or has recently married, and is seeking advice in relation to a potential pre- or post-nuptial agreement, please do not hesitate to contact Tracy Beaumont at Hethertons Solicitors for a free 30-minute consultation to see how Hethertons Solicitors can help.