What Is a Pre-Nuptial Agreement?

A prenuptial agreement (prenup) is a written document that is drawn up and signed by a couple before they get married. The document sets out the rights and responsibilities each party will have in that marriage. In most cases the main reason for creating a prenuptial agreement is to specify how property will be held, and what will happen to the couple's assets if they separate or divorce. The effect which a prenuptial agreement will have varies on the country.

Pre-nuptial agreements have been popular in the United States and a number of other jurisdictions for a long time but were relatively unknown in England and Wales until the last decade. British society's increasing obsession with celebrity news and gossip has resulted in stories about the Hollywood stars' elaborate pre-nuptial agreements and has recently increased awareness of the concept.

However, whilst prenups are considered as legally binding contracts in America and elsewhere, until recently this was not the case in England and Wales. Divorce courts on this side of the Atlantic have a broad discretion to divide marital assets up fairly and to ensure that both partners are adequately provided for - in carrying out this duty, the Courts had refused to accept that pre-nuptial agreements are legally binding although in most cases they would have regard to the provisions of any agreement when deciding how the assets should be fairly distributed.

In a case heard in October 2010 the UK's Supreme Court ruled that the pre-nuptial agreement which had been signed by both partners was legally binding and that its provisions should be observed when dividing the marital assets. This was the first time that a British court has ever acknowledged that a prenuptial agreement in the UK is capable of having legally binding effect, but it should be noted that the Supreme Court did not say that prenuptial agreements would be binding in all cases - judges will still need to consider what is fair and equitable in each individual case.

Some people are put off by the thought of a premarital agreement because the document's heavy focus on how assets will be divided if the couple divorce, which makes it appear that they are planning for the marriage to fail. The purpose of a prenuptial agreement is to make divorce settlements less messy, and it is often the case that by setting out clearly the expectations of both husband and wife in writing a significant amount of bad feeling and arguments can be avoided. Even if a Court chooses not to enforce every provision of a prenuptial agreement when making a divorce settlement, as long as the agreement is fair and reasonable, it is likely to be taken into consideration.

A divorce court will not enforce a prenuptial agreement if it suspects that one of the parties was pressurised into signing the agreement. It is therefore essential that both parties take independent legal advice on the terms and the effect of any agreement. This is a specialist and complex area of law, and you can use the Law Societies website to find a local solicitor who practices in this area.

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