While they may be enforceable in other countries, pre-nuptial agreements are not fully binding under UK law. Courts can, and often do, overturn the terms stated by the pre-nup. However, a number of high-profile cases have shown that courts will honour the contract if they see it as still being applicable to the couple's situation at the time their relationship breaks down.
When entering into a pre-nuptial agreement, there are many reasons why it is advisable to seek independent legal advice beforehand, especially if you wish the agreement to hold any legal weight in court. Oratto's member family law solicitors can ably assist you with this, but before you get in touch, here are several important facts surrounding the issue of pre-nups in court, including the reasons why they can be overruled, and how, with the right help, you and your fiancé can draw up a contract that will allow you to proceed into matrimony safe in the knowledge that your best interests are protected.
What makes an effective pre-nuptial agreement?
For a court to decide whether a pre-nup is viable, they will consider several key factors:
- Did both parties understand all the implications of the agreement?
- Did both parties receive independent legal advice?
- Was either person under pressure from the other to sign the agreement – were they coerced?
- Did both parties receive full disclosure of each other's assets and liabilities, or was there any instance of fraud or misrepresentation committed by either side?
- Under the circumstances that the divorcing couple find themselves in, would it be unfair to impose the agreement's stipulations (i.e. would one partner be left in an unjustly difficult situation if the agreement was followed)?
Gain peace of mind with expert independent legal advice
As can be seen from the above, there are many reasons why courts may disregard the terms of a pre-nup and this is why there are steps that should be taken when creating the document to ensure the best possible chance of the court allowing its terms.
Proving 'intention'
In short, a pre-nup's validity mostly centres around intention; in other words, if it can be proved that the former husband and wife agreed to the terms of their individual free will, they were both well-informed of the consequences and how they would each be affected in the event of a separation, and that the intention of the document was clear, the court may well see no reason why the terms of the pre-nup should not be honoured.
Sound legal advice is essential
A binding pre-nup is possible only if both parties receive independent legal advice. This means that you and your partner need to meet with separate pre-nuptial agreement solicitors (preferably, though not necessarily, from different law firms) to ensure no conflict of interest and to examine the options clearly. This will prove to the court that you were both made fully aware of the agreement's possible implications and the decisions to sign it were educated. The lawyers will also make sure that full financial disclosure is given by both parties, so the negotiations made are as accurate and beneficial as possible. To achieve this, your lawyer may provide you with a form to declare all material information, including your assets, properties, and debts.
All in good time and of free will
There are certain other common problems that can invalidate a pre-nup.
If one partner was put under duress by the other, for example if the offer of marriage would be withdrawn without the signing of a pre-nup, this will be seen by a court as reason to disregard the contents. The circumstances under which the pre-nuptial agreement was signed will be examined to see if any undue pressure was put on one partner or if their emotional state was manipulated in any way.
Likewise, if the issue of a pre-nup is broached at a time very close to the date of the wedding – giving insufficient time for the contents and ramifications to be examined and discussed, and for legal advice to be sought, this will also be deemed a reason for invalidation.
Another frequent issue with pre-nups, as with all legal documents, is ambiguous meaning caused by unclear wording. A skilled solicitor will draft the agreement for you in a concise and clear way that can be easily understood, leaving no room for misinterpretation.
Foretelling the future
It should also be remembered that the court will decide whether an agreement can be upheld based upon the couple's situation at the time of relationship breakdown, not how it was at the time they signed the pre-nup.
For example, even if the correct steps were taken when drawing up the contract, it's entirely possible for the court to disallow the terms if you and your partner have had children. Making sure the children's welfare is maintained will always be the uppermost priority for a court, and if there is a chance that they could be negatively impacted by the arrangements laid down in the agreement, it is likely to be disqualified. The right family lawyer will help make sure the appropriate provisions for children are made in a pre-nup, even if you have no plans at the time of drafting to have any. They will also make allowances for any other life-altering events that may influence the fair division of assets, such as the possibility of one partner suffering a major illness.
Because it is impossible to predict with certainty what may happen during your marriage and therefore what will affect the terms of the agreement, you should think about having periodic reviews of the contract to make changes and to add any pertinent clauses.
Guidance from Oratto's experienced pre-nuptial agreement solicitors
Oratto has a number of pre-nuptial agreement solicitors among its members who will be able to fully advise you on drawing up an agreement with a future spouse. They will take your individual requirements into account and provide full information on all implications of the pre-nup, helping create an agreement that is fair for both partners and therefore much more likely to be upheld in court. By enlisting the help of an expert family lawyer, you can be sure that if your marriage does breakdown in the future, you will have the best chance of reaching a just outcome that will protect your assets.
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