What are they?

An Agreement entered into by two people who intend to marry one another or become civil partners. The purpose of the Agreement is to introduce some certainty into arrangements relating to property, assets and financial provision between the parties should the marriage fail.

Are they binding under English Law?

They cannot oust the jurisdiction of the Court on divorce or dissolution of a civil partnership. However, they will be one of the factors which the Court will have regard to if asked to adjudicate upon financial provision. In recent years, the Courts have moved to give greater weight to Prenuptial Agreements and to uphold their terms. If they are well drafted and if the Court can see that they have been properly entered into, it is becoming more and more likely that the Court will attach significant weight to them and uphold them.

When considering whether to uphold the terms of a Prenuptial Agreement, the Court will look into the circumstances surrounding it. The Court will wish to be satisfied that it was entered into freely and that each party had sufficient time in which to consider its terms. The Court will need to be satisfied that one party did not place the other under undue pressure to enter into the Agreement, and each party must have had the opportunity to take independent legal advice upon its terms. The Court will also need to be certain that, in all the circumstances, the Agreement is fair.

What are the advantages of such an Agreement?

They encourage open discussion about financial matters between parties before the marriage. It is important that there is full and frank disclosure of assets and each party's financial standing as this is something that the Court will look to see has occurred when considering whether the Agreement should be upheld. Such openness at the start of a marriage is beneficial and can result in a healthier relationship.

A Prenuptial Agreement can lead to what the parties feel is a fairer settlement rather than having a solution imposed by the Court. Because the parties have negotiated the Agreement, they retain control of its terms. This can bring peace of mind and an agreement negotiated at this stage can be more cost effective, rather than there being extensive litigation at a time when emotions are running high.

Prenuptial Agreements can deal with all property and assets within the marriage, including, for example, pension rights, and can also determine the day to day provision to be made for each party.

Are they suitable for everyone?

Generally, they will be less suitable for younger couples, particularly when there is an expectation of having children within the relationship. However, every case does turn on its own individual facts, so it is important that clear legal advice is sought if a Prenuptial Agreement is being contemplated and a couple believe that it will have advantages for them.

It is not just celebrities and the super rich who should consider these agreements; they are just as relevant to 'ordinary' people. They can be particularly useful where one or both parties have been married previously, if one party is bringing more assets into the marriage, or if someone has the prospect of a significant inheritance in the future.

What if circumstances change after marriage?

Prenuptial Agreements usually provide for periodic review, either after a set number of years, or upon certain events occurring. They can therefore effectively provide for changes in circumstances, which may result in alternative provisions needing to be put in place. Again, this is something which the Court will look for when considering whether the Agreement should be upheld.

How do we agree its terms?

Your lawyer will help you to consider all of the relevant factors and to negotiate provisions which will meet your needs. They will help you to understand the financial aspect and the impact of proposals. If your lawyer is a trained collaborative lawyer, you may prefer this approach so that you can discuss matters directly with your partner, whilst still receiving support from your lawyer.

If you require further information on Prenuptial Agreements, please contact either Jane Cowley on 0116 247 3596 or email: jane.cowley@howespercival.com or Justine Flack on 0116 247 3564 or email: justine.flack@howespercival.com.