Did you do a pre-nup and is it binding?
What is a pre-nup?
A prenuptial/premarital agreement, commonly known as a pre-nup is a written agreement made prior to a marriage and states what will happen to any assets and property if the marriage comes to an end. It is not a legal requirement, and not all couples choose to use a pre-nup, perhaps seeing it as unnecessary or unromantic. Some choose to use a pre-nup, maybe to protect property, inheritance, a business or children from a previous relationship. Some couples see a pre-nup as a wise choice particularly in cases where there is a large disparity between the assets and property they both own prior to the marriage.
If you did enter into a pre-nup before getting married and are now in the position where you are considering divorce, you need to be aware of where you stand legally regarding the agreement and its enforceability.
Is a pre-nup binding?
The situation is not entirely clear cut. Traditionally, pre-nups have not been legally binding in England and Wales. However, a ruling in 2010 means that pre-nups are now legally enforceable if they are referred to during divorce proceedings, unless they are considered to be unfair.
The Law Commission recently recommended that pre-nups should be legally binding in divorce cases, once the needs of any children and the couple themselves have been taken into account. However, the recommendations also state that the couple should have had proper legal advice and know all the facts about their partner’s financial position prior to entering into a pre-nup. As this is an area where the law is still developing, it would be wise to seek legal advice if you are either considering a pre-nup, or you already have one but the relationship has broken down.
What if I don’t think the pre-nup is fair?
Perhaps you feel the pre-nup you entered into was not fair. The Court can still overturn the provisions within a pre-nup, especially if any children are involved and the pre-nup goes against their interests. If you are in this situation, you should get advice from a family solicitor.
