Prenuptial Agreements: Your Questions Answered (FAQ's)

  1. We have agreed what would happen if we get divorced in future. Can we use the same solicitor to advise us about our pre-nuptial agreement?

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    No. The same solicitor cannot act for both of you because this would cause a conflict of interest. Even if you are agreed as to the terms of the pre-nuptial agreement, these terms will potentially affect the two of you in different ways so you do need separate advice. Common practice is for one party’s solicitor to draft the agreement, having advised that party on its legal implications, and for the other party’s solicitor to review the draft, advise their client on what it might mean for them and suggest any appropriate revisions.

  2. Do I have to tell my fiancé(e) about my financial situation if we are having a pre-nup?

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    It is good practice for there to be mutual financial disclosure before entering into a pre-nuptial agreement. Without this, it is likely that the agreement would not be upheld by the court in case of a future dispute. The exchanging of financial disclosure should form part of the process of formulating the agreement to ensure that both parties are going into it with their eyes open and, to borrow a phrase from the Supreme Court, ‘with a full appreciation of its implications’.

  3. How long before the wedding should I start thinking about a pre-nup?

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    To give a pre-nup the best possible chance of being upheld in future, it should be completed a reasonable length of time before the marriage or civil partnership ceremony. There is no statutory time period and the case law does not give us a timetable. Way back in 1998, the Home Office published a consultation document called ‘Supporting Families’. Amongst other things, this document set out some ideas for future legislation on prenuptial agreements, which never actually made it into law. They suggested that a prenuptial agreement should be signed 21 days before the wedding ceremony for it to be legally binding. This is not the law but this timescale has been cited as an example of best practice.

    We would suggest that if you wish to have a pre-nuptial agreement, this should form an early part of the wedding planning. Even a relatively simple agreement can take some time to put together and it is preferable to get the pre-nup done and dusted and filed away several weeks, ideally months, before the big day. The sooner you get on with it, the better. However, if you do find yourself running short of time, talk to a solicitor as soon as you can because there may still be time to put something in place.

  4. Are pre-nuptial agreements binding?

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    Under the current law in England and Wales, pre-nuptial agreements are not binding in the same way as a commercial contract, for example. The court can always retains the right to step in and put in place a different financial settlement on divorce if the situation requires it. However, provided the document has been put together properly and certain safeguards are met, the pre-nup is very likely to be upheld in case of a future dispute as to its terms.

    The best statement of the legal position is this, which is taken from the landmark 2010 case of Radmacher v Granatino:

    "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"

  5. What sort of couples can benefit from a pre-nup?

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    Anyone can enter into a pre-nuptial or pre-partnership agreement. It is a very personal decision and some people value having a document that sets out what they will do in financial terms if they split up in future, regardless of their circumstances.

    Pre-nups are potentially of greatest importance for couples where there is a difference between their respective financial positions going into the relationship. This would include situations where there has been or is likely to be a substantial inheritance on either side. Alternatively, one party may have built up a business before getting married. Sometimes couples marrying later in life, maybe for a second time, will want to enter into a pre-nup to help protect the financial position of children from earlier relationships.

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