The short answer is yes – if the agreement fulfils several conditions. Here we look at the criteria that a court will want to see evidence of before it will enforce a prenup. We also examine recent cases that demonstrate what happens in practical terms if a prenuptial agreement is contested in court. Although the cases that ultimately reach court usually involve very wealthy couples, the rules around prenups apply equally to couples with more modest means and should always be considered ahead of any agreement.
At Gamlins Solicitors LLP we advise on all legal issues affecting relationships, and you can contact the team on 01492 860420.
How do i make a prenuptial agreement binding?
To be certain that the prenup you are making is one you and your future spouse will be able to rely on if your marriage breaks down you must:
- Enter into the agreement freely
- Understand fully the financial implications of what you are signing (this includes appreciating that you may be entitled to more under a divorce settlement if there had been no prenup in place)
- Show that it is it fair to hold you both to the agreement
- Ensure that the conditions for a valid contract are met
- Sign the prenup well in advance of the wedding (usually 28 days is acceptable). This is to avoid any suggestion that one party has been pressurised into signing the prenup
- Both disclose your financial circumstances
- Ensure that the agreement doesn’t in any way adversely affect children
- Make sure that the agreement meets the financial needs of each party
A final requirement is that both parties receive independent legal advice – this is the best way to ensure the other conditions are met.
Enforcing the prenup – the case of MN v AN (2023)
While the court always has discretion to vary an agreement it deems unfair, in most cases where the conditions listed above are met there should be no real difficulty in enforcing the agreement. In 2023 this approach was confirmed in the case of MN v AN. At the time of the prenup the husband disclosed that his financial worth was £30 million. The wife’s net worth was around £60,000. The background to the agreement was as follows:
- Both husband and wife got advice from reputable family law solicitors
- Extensive negotiations about the terms of the agreement took place
- The agreement stated that both had received independent advice, they were entering the agreement of their own accord and they wanted the agreement to bind both of them.
When the marriage broke down the wife wished to extricate herself from the agreement, arguing that it did not adequately provide for her and that she had been pressurised into agreeing to it.
The husband offered to settle the case by paying the wife a significant amount more than she was due under the agreement. When the wife didn’t respond in any meaningful way the husband asked the court to enforce the agreement. Given the background to the agreement we have described above, it is perhaps unsurprising that the court had no hesitation in doing so.
When are prenups invalid?
Where the conditions are not met, the courts may not uphold the agreement. In 2020 in the case of S v H for example, after a marriage of six years’ duration the judge found that the prenup had no value whatsoever. The parties had not made any substantial financial disclosure ahead of signing the agreement, nor had they obtained separate, independent legal advice. In addition the judge was unimpressed by the fact that the agreement was signed just five days before the wedding.
If you need any advice on a prenuptial agreement that you have signed and wish to enforce or you are considering signing one, please call us on 01492 860420 or email firstname.lastname@example.org
Gamlins Solicitors LLP has a network of offices across North Wales. We can arrange an in-person appointment at the office that’s most convenient for you or a remote appointment if you prefer.