This article featured in the FT is interesting as it highlights the increased popularity of prenuptial agreements. As an experienced family lawyer I can certainly attest to the fact that since I qualified as a solicitor in 2009 the number of prenups I do increases every year.
In 2010, there was a landmark case called Radmacher in the Supreme Court of England and Wales. Many say that it was this case that increased the popularity of prenups. The Supreme Court famously (at least amongst family lawyers) said:
"The Court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
Consequently, provided certain requirements were satisfied, a prenup was more likely to be upheld than not. It is essential that any prenup is fair and should not prejudice any children of the family. The case also highlighted the importance of financial disclosure and legal advice. The agreement should be freely entered into and both parties must fully understand the terms of the agreement they are entering into. It is also advisable that any agreement is reviewed as the marriage or civil partnership progresses.
Prenuptial agreements are not 100% binding in England and Wales as they are in many countries around the world. The court retains the ability to adjust a financial settlement on divorce to achieve a fair outcome. However, provided the agreement is fair they are very likely to be taken into account. A specialist family lawyer can advise you as to whether the terms of a prenup are likely to be considered fair by a court.
Prenups were initially very popular amongst wealthier individuals, those who were entering into a second marriage with assets to protect or those seeking to preserve family wealth. However, they are now increasingly more popular with the younger generation who seek to preserve their own financial independence within relationships. Whilst prenups were previously seen as unromantic, many people I speak to see them as a pragmatic and sensible way to address their future financial positions. In a very uncertain world, a prenup can help to provide an element of certainty about the future.
For further advice about prenups please speak to a member of our Family Law team.
only a judge can uphold its terms or, if finding that its effect is not fair, substitute different provisions to achieve fairness