If you are facing difficulties in your marriage and you have a prenuptial agreement – abbreviated here to PNA- , you may be curious to know just how binding the terms will be, especially if your life is now rather different to the one you envisaged when you planned to get married.
‘One of the main reasons people enter a PNA is to protect wealth from outside the marriage, such as a business or an inheritance,’ says Rebecca Massam, a Partner in the family team with Warners. ‘It can be helpful to obtain certainty in regard to the financial position should the marriage come to an end.’
‘Sometimes other events can cause you to question whether the agreement is still appropriate. For example, if you have entered into a new business partnership, a divorce could have a significant impact on you and any business partners, and you may wish to guard against this risk.’
It is important that anyone contemplating a divorce or who has concerns about an agreement has a lawyer examine their PNA.
Will the family court uphold my prenuptial agreement?
In England and Wales there is no law specifying that a PNA is legally binding. However, after a landmark decision in 2010 the courts decided that they would give weight to PNA’s under certain circumstances when they are determining the outcome of the financial division of assets between spouses during divorce. This provides some reassurance that, if done correctly, an agreement can be upheld in court.
Is my agreement valid?
One of our specialist family lawyers can examine your prenuptial agreement and discuss with you the circumstances surrounding when the agreement was signed.
It will be important to consider a number of factors which could be detrimental to the agreement being upheld. These include:
- Where the agreement was entered too close to the wedding day. It is generally expected that the agreement should be signed at least three weeks before the big day – any closer and you run the risk that the court will think it was unfair because of the increased pressure that the deadline will bring.
- Where either you and/or your former spouse allege that you were put under any pressure or duress to sign the agreement.
- Where either you or your former spouse did not make a full and frank disclosure of all assets and liabilities in your names, or that you hold jointly with any other person.
- If the agreement was not in writing and signatures independently witnessed.
- If you and/or your spouse did not obtain independent legal advice on your entitlements.
What if I am no longer happy with my prenuptial agreement?
People’s lives will change throughout their marriage, and no one can predict at the outset what curve balls you may be thrown. Sometimes a PNA entered many years ago may no longer be an agreement you are content with, or one that allows for changed family circumstances which impact your previous plans.
For example, you may have had children, one of you may have had to give up your career, suffered serious ill-health or started a new business partnership or venture.
If you find yourself in this boat, it is useful to know that you do have options.
Can I renegotiate our prenuptial agreement?
Renegotiating an existing PNA during the course of your marriage is absolutely possible. Most PNAs will include a review clause, providing for the document to be reviewed after a life changing event or once a certain period of time has lapsed. This new agreement would then be known as a Postnuptial Agreement and acts in the same way as a prenup. It can also provide confidence and security going forward after a change in family circumstances.
In order to make this new deal as binding as possible, you will both be required to engage separate legal representatives and provide full disclosure of your asset to each other.
Can I apply to the court to disregard the prenuptial agreement?
When you divorce, you can apply to the court for them to consider your finances if you cannot agree with your spouse on the terms of the settlement. Quite often, a PNA will also include various options for a couple to attempt to reach an agreement without recourse to the court, but sometimes this is not possible.
The court will first determine if the PNA should be binding. In determining this they will consider the terms of the agreement as well as the circumstances surrounding when it was signed.
If upholding your PNA would be unfair due to changes that have not been provided for since the agreement was drawn up, then you look to challenge the enforceability of the agreement.
If the court is not satisfied that the agreement should be upheld, then it will make the financial orders it deems appropriate considering your family and financial circumstances. During the course of the proceedings, you will also have the opportunity to negotiate a settlement with your spouse.
If you are contemplating divorce, or simply want to have your prenuptial agreement reviewed, it is best to obtain early legal advice to understand your options.
For further information on divorce or advice on any other family law matter, please contact Rebecca Massam on 01735 747900 or [email protected]. Warners Solicitors has offices in Sevenoaks and Tonbridge, Kent.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.