A prenuptial agreement is a formal agreement that couples enter into before getting married to specify how their finances and assets will be divided should the marriage break down. Such an agreement is unenforceable in the English Courts as it is their policy not to recognise them in the interest of protecting the party in the weakest position, either financially or otherwise. However, you may still choose to enter into an agreement as it may carry some weight with the Court in the event of your separation as it shows evidence of your long term intention when entering into a marriage.
If your marriage does break down you need to make sure that the prenuptial agreement you have in place will carry as much weight as possible with the Court. This means that the terms of the agreement should be implemented when certain criteria are met. Some such criteria include that the court must, at the time of the separation, be in a position to find that:
- The agreement was entered into freely, voluntarily and without undue pressure.
- Both you and your partner fully appreciated its implications and offered full disclosure of all relevant information supported by documentary evidence prior to entering the agreement.
- Both you and your partner obtained independent financial advice and intended the agreement to be effective and to govern the financial implications of divorce.
- It would be fair to hold the parties to the agreement at the time of the divorce.
It is important to bear in mind that should the marriage break down, you would be able to produce the prenuptial agreement as evidence of intentions before the marriage. However, should the marriage last a long time or you subsequently have children, the prenuptial agreement is unlikely to be upheld.