The family law team at Lupton Fawcett has helped many people protect their assets by drafting a prenup to ease tension should they separate from their partner.

If you require advice or support with a prenuptial agreement, contact our Yorkshire-based solicitors today by calling 0333 323 5292. Alternatively, fill in the enquiry form on this page and we will get back to you shortly.

What is a Pre-Nuptial Agreement?

A prenuptial agreement sets out arrangements, which both parties have agreed, should a marriage breakdown, or should a spouse pass away. The purpose of a prenup is to encourage solutions to be made with as little emotional stress and expense as possible. Matters that can be addressed in a pre-nup include:

  • Financial settlements
  • Division of assets
  • Details about future arrangements for children
  • Property and estate claims

It is also possible to address matters in a postnuptial agreement (postnup) after you have entered into marriage. This can be approached as a way of reviewing or varying an existing prenuptial agreement.

The Team

At Lupton Fawcett, we aim to give you peace of mind during your marriage that your assets are protected. Our solicitors are on hand to draw up agreements, answer your questions or queries or represent you should you need to go to court, if there is a challenge to the provisions of a prenuptial agreement.

Please note this information is provided by way of example and may not be complete and is certainly not intended to constitute legal advice. You should take bespoke advice for your circumstances.

Are Pre-Nuptial Agreements Binding?

At the current time, prenups are not legally binding in England and Wales. However, the courts are increasingly taking the view that where fair agreements are entered into with full financial disclosure and with each of you having the benefit of legal advice, a dissatisfied party should remain bound by the terms of any made agreement.

In February 2014, the Law Commission recommended a change in the law to introduce ‘qualifying nuptial agreements’ which would, as long as certain safeguards are satisfied, allow for the terms of such agreements to be enforced by the parties.

Whilst the change in law is awaited, the courts are enforcing implementing agreements where they are fair, have been entered into by parties with full financial disclosure and legal advice and where the needs of any child are not disregarded.

Applying for a Pre-Nuptial Agreement

One of the key factors any court must take into account when considering the terms of a pre-nup is the needs of the two parties. No agreement can ever be allowed to prejudice the reasonable requirements of a child.

If the agreement is to carry weight, the parties must enter into it of their own free will, without any undue influence or pressure and have a full awareness of each other’s financial circumstances.

The principle of autonomy is an extremely important consideration and is undoubtedly the driving force behind more and more couples choosing to regulate their own financial affairs.

The longer a marriage has lasted the more likely that unknown and unforeseen contingencies will affect the parties’ rights. This is more likely to make it unfair to hold the parties to their agreement. Such circumstances are, however, likely to be fact-specific and agreements can always be reviewed from time to time or if a significant event occurs that may impact of the terms of the agreement.

Contact Us for Help

To speak to us about pre or postnuptial agreement, contact our Leeds, York or Sheffield office using the details on the enquiry form to find out more about how we can help you

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Frequently Asked Questions

What are the key points of the current law?

When considering the role of a Pre-Nuptial Agreement in a financial claim on divorce, the starting point is the relevant legislation, which is the Matrimonial Causes Act 1973.  Section 25 of that Act obliges a Judge to consider all the relevant circumstances of the case when deciding how to divide the parties’ finances on a divorce.

No agreement between the parties can override the legislation or prevent the Judge from deciding on the appropriate division of assets on a divorce.  This means a Pre-Nuptial Agreement cannot stop a spouse from applying to the Court for financial provision from the other spouse.  Any “waiver” of the right to apply to the Court for financial provision in an agreement will not be effective.

The significance of a Pre-Nuptial Agreement is a relevant circumstance of the case, to be weighed by the Judge.  A Pre-Nuptial Agreement will have a substantial impact on the Judge’s decision in many cases.  The Supreme Court has made clear 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.

Must the Agreement be freely entered into?

Yes, both parties must enter into the Agreement of their own free will, without any pressure from each other or anyone else.  The Agreement is unlikely to be upheld if the Court finds evidence of mistake, duress, undue influence, misrepresentation or unconscionable conduct, such as exploiting a dominant position to secure an unfair advantage.

Both parties should be on an equal footing and freely able to negotiate the terms of the Pre-Nuptial Agreement with one another.

What are the vitiating factors?

Both parties should negotiate the terms of the Pre-Nuptial Agreement as far in advance of the wedding date as possible.  Both will need sufficient time to consider the terms and receive legal advice about the effect of those terms so that there is no last-minute pressure on either party as the wedding day approaches.

The Court will take into account individual circumstances such as a party’s emotional state at the time of making the Agreement and factors such as age and maturity and previous experiences of long-term relationships. Such circumstances may inform what pressures a party felt under to sign the Agreement.  If a Court considers the parties entering into a Pre-Nuptial Agreement are mature, with a wealth of life experience and knowledgeable in relation to financial matters, this will enhance the weight to be attributed to the Agreement.  Conversely, if the parties are young, immature and do not have a wealth of life experience, that may count against the Pre-Nuptial Agreement being given decisive weight.

The Court may also consider whether the marriage would have gone ahead in the absence of a Pre-Nuptial Agreement.  If a party would have refused to proceed with the wedding, that may reinforce its weight.

Do the parties need to have a full appreciation of the implications of the Agreement?

Yes, both parties should be in possession of all the information material to their decision to sign the Pre-Nuptial Agreement before signing it, so that they fully understand the implications of the Agreement.

Both parties should both receive specialist family law advice.

Both parties should each provide financial disclosure to be included in the Pre-Nuptial Agreement, setting out their assets, income and potential assets such as inheritances and any interests under discretionary trusts.  Once the parties have a full picture of each other’s financial situation, they have a context in which to negotiate the terms of the Pre-Nuptial Agreement.

The Pre-Nuptial Agreement should be intended to determine the financial consequences of any future breakdown of the marriage.  Whilst Pre-Nuptial Agreements are not currently legally binding, both parties should expect to be held to its terms.

Does the Agreement have to be fair to hold the parties to its terms?

The Supreme Court has provided the following guidance for assessing fairness:

  • It is not fair for a Pre-Nuptial Agreement to prejudice the reasonable requirements of any children of the family.  If, therefore, the parties have any children in the future, it would be advisable to reconsider the terms of the Pre-Nuptial Agreement to ensure the child[ren] receive[s] adequate financial provision under the terms of the Agreement.
  • The autonomy of adults should be respected:  it is “paternalistic” and “patronising” to override the terms of an Agreement simply on the basis that the Court “knows best”.
  • There is nothing inherently unfair about a Pre-Nuptial Agreement that seeks to ring-fence what is often referred to as “non-matrimonial property”.  Non-matrimonial property comprises property owned by one party before the marriage or assets a party receives from a third party during the marriage, through lifetime gift or inheritance.  The Supreme Court judgment sanctions the use of a Pre-Nuptial Agreement to shield family wealth and assets acquired before the marriage.
  • The longer a marriage lasts following a Pre-Nuptial Agreement being signed, the greater chance it may not be fair to hold the parties to its terms because of unforeseen changes in circumstances.  This is more relevant to young parties starting married life with few assets and less relevant where significant assets have already been accrued before the marriage.
  • If the effect of the Pre-Nuptial Agreement would be to leave one party with less than his or her needs, while the other party is comfortably provided for, this is likely to be unfair.  Needs are based on the amount a party needs to spend to maintain a standard of living not too dissimilar from that enjoyed during the marriage.
  • If one party has a valid argument for an element of compensation (for loss of earning power following a joint decision that one spouse should give up a career to care for the family) then a Pre-Nuptial Agreement which ignores this compensation is likely to be unfair.
  • If needs and compensation are adequately covered in the provision offered in the Pre-Nuptial Agreement, then further sharing of the assets may be prohibited.  This limits a spouse’s ability to claim an interest in a non-matrimonial property, such as inheritances, gifts and property owned by the other spouse before the marriage.

What is the effect of the Supreme Court test on Pre-Nups?

As the law currently stands, Pre-Nuptial Agreements are almost as good as binding, provided they are fundamentally fair.

However, as emphasised above, even if a Pre-Nuptial Agreement is given decisive weight, the Court still has the power to make financial awards on divorce.  A Pre-Nuptial Agreement will be only one of the factors considered when the Court is exercising its discretion to deal with the parties’ finances.  You should, however, expect to be held to its terms.

What are the Law Commission’s Recommendations?

The Law Commission has published a report entitled ‘Matrimonial Property, Needs and Agreements’.  In this report, the Law Commission recommends legislative reform to make Nuptial Agreements that are in a prescribed form, and adhere to certain safeguards, legally binding.  A Nuptial Agreement that meets the criteria is called a “qualifying Nuptial Agreement”.

Qualifying Nuptial Agreements would prevent the Court from making financial Orders on divorce that are inconsistent with the terms of the Nuptial Agreement, unless an Order needed to be made to meet one of the parties’ financial needs, or for the benefit of a child of the family.  Nuptial Agreements that do not adhere to the criteria would continue to be treated as a “relevant factor” of the case by a Judge deciding what financial Orders to make on divorce.

A qualifying Nuptial Agreement must meet the following criteria:

  • It must be contractually valid (the validity requirement).  There must be no factors present that cast doubt on the free will of the parties to the Agreement or on the level of information a party had when entering the contract.  Any evidence of mistake, misrepresentation, duress or undue influence may cause the Agreement to fail.
  • It must be validly executed as a deed and contain a “relevant statement” signed by both parties confirming that they understand the Agreement is a qualifying Nuptial Agreement that will remove the Court’s discretion to make financial Orders on divorce except to meet financial needs (the formation requirement).
  • It must not have been made within the 28 days before the wedding (the timing requirement).
  • Both parties to the Agreement must have received disclosure of material information about the other party’s financial situation when entering into the agreement (the disclosure requirement).
  • Both parties must have received legal advice at the time they entered into the Agreement (the advice requirement).
  • It must not prejudice any children.  If the Agreement makes insufficient financial provision for children, it will be set aside by the Court.
  • Both parties’ needs must be met.  As explained above, need is measured with reference to a standard of living during the marriage.  Provision for needs is not limited to an income stream; it includes capital provision and the long-term provision of a home.  The possibility of ongoing financial provision for a party caring for children is important.  An Agreement that results in a party receiving nothing or very little would not be upheld by the Court.

Accordingly, it is important to bear in mind the proposals and sensible to ensure a Pre-Nuptial Agreement complies with the suggested requirements for a qualifying Nuptial Agreement as far as possible.

Complying with these requirements will mean that the Pre-Nuptial Agreement has the best chance of being legally binding in the future and will provide both parties with as much clarity and certainty as possible regarding the division of their finances if the marriage should break down in the future.

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