Are pre-nuptial agreements legally binding?

Q. My fiancée and I are due to get married and we have discussed entering into a pre-nuptial agreement.

We have both been married before and have grown up children, so we’ve agreed that if our marriage breaks down we would both wish to retain our assets as we would want these to be inherited by our children. Would a pre-nuptial agreement be legally binding?

 A. Although pre-nuptial agreements are not currently automatically binding in the courts in England and Wales, there are a number of steps you and your solicitors can follow to improve the possibility of your agreement being binding.

Seek independent legal advice

If your solicitor prepares the agreement, ensure that your fiancée receives independent legal advice on its terms from a specialist family lawyer. This is important to avoid any argument that your fiancée didn’t have a full understanding of the implications of the agreement.

Disclosing your current financial circumstances is vital when entering into a pre-nup because if either of you are able to demonstrate that you didn’t know the full extent of the other’s wealth at a later stage, then the agreement could be overturned.

A fair and mutual agreement

It’s also important that your agreement is fair, as if the terms result in either you or your wife suffering financial hardship then the pre-nup is unlikely to be upheld. Your solicitor will consider your financial circumstances and advise whether the agreement could be considered to be fair to reduce the risk of it being overturned in the future.

You must not be pressured or coerced into signing the agreement if you are not happy with the terms, so if either of you are able to prove that you felt that you had no choice but to sign the agreement or you signed it against your will, then this could be a reason for the agreement to be ignored.

It is therefore also vital that the pre-nuptial agreement is signed as soon as possible to prevent either of you suggesting that you felt under pressure to sign the agreement as your wedding date was imminent.

For additional information on pre-nuptial agreements or for advice on any family law matter, contact Janine Hutson on 01772 258321