15 June 2023

Is my prenuptial agreement legally binding?

By Family Solicitor, Emma George, Hayes + Storr.

One of the main reasons couples enter into a prenuptial agreement is to protect wealth from outside the marriage, such as a business or property. It also helps obtain certainty regarding the financial position of both parties should a marriage come to an end.

Will the family court uphold my prenuptial agreement?

In England and Wales there is no law specifying that a prenuptial agreement is legally binding. However, after a landmark decision in 2010 the courts decided that they would give weight to prenuptial agreements under certain circumstances when considering the outcome of the financial division of assets between spouses during divorce.

Prenuptial agreements, entered into properly, should be upheld provided they meet the needs of the parties.

Is my agreement valid?

There are several factors which could be detrimental to the agreement being upheld, namely:

  • If the agreement was entered too close to the wedding day.
  • If either you and/or your former spouse allege that you were put under duress to sign the agreement.
  • If either you or your spouse did not undertake 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 independently witnessed.
  • If you and/or your spouse did not obtain independent legal advice.
  • What if I am no longer happy with my prenuptial agreement?

Sometimes a prenuptial agreement may no longer be an agreement you are content with, or one that allows for changed circumstances.
For example, if one of you:

  • had to give up your career to look after your children;
  • had to give up work to care for a disabled relative;
  • suffered serious ill-health; or
  • has started a new business partnership or venture.

Can I renegotiate our prenuptial agreement?

You can renegotiate the terms of your prenuptial agreement during your marriage. To do this, you should both engage with separate legal representatives and make a full and frank disclosure of your assets.

Can I apply to the court to disregard the prenuptial agreement?

When you divorce, you can request that the court considers your finances if you cannot agree on the terms of the settlement.

The court will determine if the prenuptial agreement should be binding. In determining this they will consider the terms of the agreement as well as the surrounding circumstances when it was signed.

If upholding your prenuptial agreement would be unfair due to unforeseen changes from the time it was entered into, then you may be able 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 after considering your family and financial circumstances.

How we can help

For further information on prenuptial agreements, contact Family Solicitor, Emma George on 01328 863231 or email emma.george@hayes-storr.com.

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.