Most people assume that an agreement signed by them will be enforced by a court if things go wrong. However, while prenup agreements are increasingly recognised by the courts in England and Wales, they are not automatically legally binding. Whether a prenup agreement is enforced by a court will depend on a number of factors.
Key factors that influence enforceability
For a prenup agreement to be enforceable, certain legal principles must be met. The court will assess the prenup agreement’s validity based on the following factors:
1. Voluntary agreement
Both parties must have entered into the prenup willingly, without any coercion, pressure, or undue influence. If the court finds that one party felt forced or rushed into signing, the agreement may be set aside.
2. Independent legal advice
Each party should have received independent legal advice before signing the agreement. This ensures that both individuals fully understand the implications of the terms and the impact on their future financial situation.
3. Full financial disclosure
Transparency is critical. Both parties must disclose their financial circumstances, including assets, liabilities, income, and any other relevant financial details. Failure to do so can undermine the prenup agreement’s enforceability.
4. Fairness
The terms of the prenup agreement must be fair and reasonable. Courts will not uphold a prenup agreement if the outcome would leave one party in financial hardship or if the terms are grossly imbalanced.
5. Proper timing
The prenup agreement should be signed well in advance of (and in any event more than 30 days prior to) the wedding to demonstrate that both parties had sufficient time to consider the terms and seek legal advice. Signing a prenup agreement too close to the wedding date could be viewed as evidence of pressure.
The Supreme Court’s position on prenup agreements
The 2010 landmark case Radmacher v. Granatino significantly influenced how prenup agreements are viewed in English law. In this case, the Supreme Court stated that prenup agreements should be upheld if they are freely entered into by both parties with full understanding and unless it would be unfair to enforce the terms.
The ruling established that the court should respect the autonomy of adults who make decisions about their own financial affairs, provided those decisions are reasonable and fair.
When a prenup agreement might be challenged
Despite the court’s increased willingness to enforce prenup agreements, there are circumstances where a prenup agreement might be challenged, including:
- Material changes in circumstances: If there has been a significant change in circumstances since the prenup agreement was signed (e.g., the birth of children or a drastic shift in financial status), the court may modify or set aside the prenup agreement.
- Unfair terms: If the prenup agreement contains terms that leave one party without adequate financial provision, the court is unlikely to enforce it.
Steps to strengthen a prenup agreement’s enforceability
To ensure that your prenup agreement has the best chance of being upheld by the court, you should instruct a solicitor to draft a bespoke agreement tailored to your needs and circumstances. You should instruct a solicitor as early as possible – prenup agreements entered into too close to your marriage risk being unenforceable.
Conclusion
While prenup agreements are not legally binding in the strictest sense, courts in England and Wales are increasingly inclined to uphold them if they meet certain criteria. By seeking independent legal advice, engaging in full financial disclosure, and ensuring the agreement is fair and free from pressure, you can greatly improve the chances of your prenup being enforced.
A well-drafted prenup not only provides financial clarity but can also offer peace of mind for both partners. Prenup Solicitors are here to support you through every step of the process ensuring that your prenup agreement is robust, fair, and future-proof, and as likely to be enforced as possible.