Prenuptial agreements are currently not automatically enforceable by courts in England and Wales. However, following a Supreme Court ruling in 2010, which stated that courts should consider prenuptial agreements if they have been entered into freely with full understanding, there have been calls for a reform of marriage laws. This includes proposals for a new form of marital property agreement.
“What is the problem that requires reform—and this debate? In summary, the Supreme Court judgment opened the door to challenges to those agreements by requiring them to be “fair”, a concept that lies in the eyes of the beholder judge. That has meant that excess judicial discretion has undermined their usefulness and led to constant challenges to the validity of agreements which the couple, having had legal advice at the outset, believed were valid, until advised that it might be worth attacking them when the break-up occurs and one of them wants a larger award than that provided for in the prenup.” – Baroness Deech at the House of Lords
What is a Prenuptial Agreement?
A prenuptial agreement, often referred to as a ‘prenup’ is an agreement made by a couple before marrying or entering a civil partnership. They outline the assets of each party and how these assets, and any assets acquired during the relationship, would be divided in the event of separation, divorce or dissolution.
Growing Popularity
Prenups are usually considered by those who have substantial wealth or assets before entering a relationship, and wish for this to be protected.
Co-op Legal Services reported that prenuptial agreement sales had increased by 60% compared to in 2022, and that 21% of married people in Britain had a marital agreement in place.
A 2023 YouGov survey also found that 42% of British people thought prenups were a good idea. YouGov also found that 35% of respondents would sign a prenuptial agreement, while 36% would not.
Can I Alter My Prenup?
You can change your prenup during your marriage to cater for any changes in circumstance. However, these alterations must be signed by both parties and witnesses, just like with the original prenup.
Why Might a Prenup be Overruled?
Although prenups are usually recognised by UK courts, they can also overrule any agreement within the prenup if they believe any agreement is unfair. This includes situations such as if:
- One of the parties did not provide a full disclosure of their assets or debts
- One of the parties was coerced into signing the agreement
- The agreement would result in the children of the marriage or of one of the parties being treated unfairly, or with their needs not met
- The agreement was signed when one of the parties was mentally ill
- The agreement was signed less than 21 days before the marriage
- One or both people did not fully understand the implications of what they were signing
- Fraudulent activity, e.g, forged witnesses or changes to the text after signing