Prenuptial agreements are no longer the preserve of the rich and famous. They can play a vital role in protecting pre-marital assets, from houses to artwork. Although it may seem unromantic, there are valid reasons to do this, aside from protection against potential divorce. For example, it can ensure that assets you may wish to be kept solely for children from a previous marriage do not end up as marital assets, protecting them for inheritance reasons.
Whilst not legally binding in the United Kingdom, they are recognised by the courts. In the case of Radmacher v Granatino [2010] UKSC 42, the Supreme Court held that a prenuptial agreement can be valid. The court held that as long as a prenup was fair and freely entered into by both parties, then they were likely to be upheld.
This means that whether a prenup will be valid, if a dispute goes to court, will depend on how it is interpreted by the judge in the matter. In order for it to be upheld, you must ensure the following six steps are followed:
1. Time
In order to show that a prenup was not rushed into at the last minute, and that both sides had time and opportunity to fully consider a prenuptial agreement, it should be made at least 28 days before marriage. A well thought out and carefully drafted agreement will be more likely to convince a judge it should be upheld than a rushed agreement.
2. Independent Legal Advice
In order to show that a prenuptial agreement was fully considered, both sides should seek independent legal advice. This means each party speaking to different solicitors, so that there is no conflict of interest. Independent legal advice can show a judge that both parties understood the implications of the agreement, and the potential outcomes.
3. Voluntary
A prenuptial agreement entered into through control or duress is unlikely to be upheld by the courts. This means both parties must have entered into it voluntarily. If one party is in a position of having a lot more to lose than the other, then it is likely that judges will give this element concentrated scrutiny.
4. Full Disclosure
To show that the prenuptial agreement is fair, both parties must fully disclose all their assets. Not only will hiding assets make it likely the whole agreement will be considered invalid, even if the court found the agreement valid, hidden assets would likely not be covered.
5. Fair and Realistic
If the court feel that a prenuptial agreement is too heavily weighted towards one party, especially if that party had a stronger advantage during the drafting stage, they will be more inclined to consider the agreement unfair and invalid. To avoid this, the agreement should be fair to both sides and be as realistic as possible.
6. Review
The courts will be more likely to uphold a prenup that is recent compared to one entered into 10 years ago and not reviewed since. This means keeping it updated as circumstances change, such as children, deaths and inheritances. The courts are more likely to uphold the validity of a prenuptial agreement that was fairly entered into and then constantly reviewed, maintaining fairness.
