Prenuptial agreements (prenups) are contracts established before marriage to outline the division of assets in case of divorce or separation. These agreements encompass assets acquired both before and during the marriage.
Postnuptial agreements are effectively the same but made after the date of marriage. In this piece, we refer to prenups only, but the process and considerations are largely the same for both types of agreements.
Divorce rates have remained high for a long time, with figures recently published by the ONS (Office for National Statistics) putting the UK divorce rate at 42%. This means that almost half of marriages end in separation or divorce and these figures seem unlikely to come down any time soon.
With the divorce rate being so high across the UK, there has never been a better time for couples to consider entering a prenup agreement before getting married. This article will highlight the key benefits of a prenup agreement, as well as advice to increase the likelihood of an agreement being upheld.
The benefits of a prenup
Many individuals view prenups as a practical financial planning tool akin to taking out an insurance policy. It is sensible after all, as we would not think twice about taking out insurance when buying a car or a house, yet a marriage encompasses so much more.
Some of the key benefits of a prenup agreement include:
- Asset Protection – prenups allow individuals to protect their pre-marital assets, inheritances, and other personal wealth from another party in the event of a divorce.
- Clarity – although it can be a difficult process to instigate, prenups provide clear guidelines for how assets and debts will be divided, reducing potential disputes.
- Reduced Stress – a divorce will always be a stressful process but having a prenup in place can ease the emotional burden of divorce, knowing that financial matters are settled in advance.
It is important to note that prenups are not automatically legally binding in this country, as our courts retain overall jurisdiction to determine a “fair” distribution of assets on divorce.
However, our family courts are increasingly respectful of such agreements and often look no further than, or not much further than, the terms of the prenup in deciding what is “fair”, provided that the agreement was well prepared, with certain formalities undertaken and it remains up to date.
How a prenup helped in the case of Radmacher v Granatino
Perhaps the turning point in the use of prenups was the case of Radmacher v Granatino in 2010. This landmark case established crucial principles regarding the enforcement of pre-nuptial agreements in the UK.
In this case, Katrin Radmacher, a German heiress, and Nicolas Granatino, a French banker, had entered into a pre-nuptial agreement before their marriage. The agreement stipulated that neither party would make financial claims against the other in the event of divorce.
When the couple divorced eight years later, Mr Granatino sought a more substantial financial settlement than he was allowed under the terms of the prenup.
However, the Supreme Court ruled in favour of largely upholding the agreement, setting a precedent that prenups should be given significant weight in divorce proceedings, provided they meet certain criteria. These criteria include that the agreement must be entered into willingly, both parties must fully comprehend its implications and the agreement must be fair.
How to ensure a prenup is upheld
Now that we’ve explored the main benefits of having a prenup, let’s delve into how to increase the chance of the agreement being upheld in case of a divorce. To enhance the likelihood of an agreement being upheld, it is advisable to attend to the following:
- Finalise and sign it well in advance of the marriage, ideally at least 6 weeks before the wedding.
- Full financial disclosure should be given between the parties so that both can go into the arrangement with their eyes open.
- Each party should take independent legal advice from their own solicitor.
- Efforts should be made to ensure there can be no question that any of the standard vitiating factors are present, namely duress, fraud, or misrepresentation. Even though the agreement does not have contractual force, those factors will negate any effect the agreement might otherwise have.
- A review clause, triggered by the passage of time or specific events like the birth of a child or bankruptcy, should also be incorporated into the agreement. If it is not, and such life-altering events occur, the agreement would no longer look “fair” and would therefore lose effect.
When properly prepared, these agreements can be invaluable if the marriage does not work out. The potential costs associated with contested financial proceedings can easily reach tens of thousands of pounds, and that money, time and stress can be hugely mitigated by the use of a well-prepared prenup.