We’ve all likely heard of the use of prenuptial agreement in the USA, an agreement which one person can ask another to sign before marriage that states what they will or what they will not be entitled to should they divorce. Many people wonder, prenuptial agreements in the UK, what’s the deal? Can I get one? Will it work? Will it be enforceable? As always, individual circumstances play a huge role in all elements of legal cases, so take the following guidance with caution and seek legal advice for more detailed advice.
Generally speaking, no, prenuptial agreements in the UK are not enforceable and will not work. However, this traditional view has in recent times changed to an extent. Whilst the courts are still not willing to accept them, they will in some cases take them into account as a factor during divorce. Some guidance has been provided that states the court will only take them into account if 1) It does not seek to remove the courts from the divorce process; 2) It follows English contract law; and 3) It is not manifestly unfair to any party in the divorce. If all these factors are followed, a prenuptial agreement can still play a significant role during a divorce hearing.
Although prenuptial agreements in the UK are not technically enforceable, the courts have been much more willing to accept what is called a post-nuptial agreement. This is when a couple make an agreement of how assets, finances and other arrangements will be split upon divorce after they have married (not before as for prenuptial).
So with prenuptial agreements in the UK – that’s the deal! They generally aren’t accepted, but if done right can be taken under consideration. And if you enter into an agreement after marriage, a post-nuptial agreement, that is much more likely to be accepted by the courts.