Prenuptial Agreements - Frequently Asked Questions

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Are prenups legally binding?

Until recently, prenups were not enforceable in England and Wales.  This was in contrast to the position in other European jurisdictions.

Since the 2010 case of Radmacher and Gramatino, the case law now says that the Court should give effect to a nuptial agreement (i.e. a prenup or postnup) that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement.

When deciding whether it is fair to hold individuals to a prenup, a number of factors have been identified as relevant.  For example, both the husband and the wife must enter in to the agreement of their own free will.  Duress or undue pressure could reduce the weight that is given to the agreement and could even negate it completely.  The Court will look at the couples’ circumstances at the time the agreement was entered into (age, maturity and emotional state) in considering whether each of them understood the implications of the agreement and whether they intended it to be effective.  Whether the parties obtained independent legal advice and the level of financial disclosure will also be relevant.

Any children of the marriage remain an overriding consideration and the terms of the agreement must still result in a ‘fair’ outcome.  The closer the effect of an agreement to an outcome that the Court would find to be fair, the more likely it is to be given decisive weight.

In summary, prenups are increasingly being upheld by the Courts and it is essential that you sign up expecting to be bound by it. You will need to understand the rights you are giving up by entering into such an agreement.

Is it worth me getting a prenup?

If you have assets or income to protect, or perhaps you are marrying for a second time, it may well be worthwhile entering into a prenup.  We will tailor the agreement to your specific objectives, and will give you realistic advice on the law so that you are protected in the future.

What if we are getting married abroad?

If you have connections with England, or you are planning on living here during your marriage, it may be in your interests to have an English prenup.  We will work with lawyers in other countries, if relevant to your circumstances, to make sure you have advice where you need it.

What is the difference between a prenup and a postnup?

A prenup is an agreement entered into before marriage; a postnup is entered into after marriage.

When should I start the prenup process?

The sooner you start discussions the better. It is worth starting the process at least 6-12 months before your wedding so that it can be done without time pressures. Ideally, you would sign the agreement at least 2 months before your wedding.

How does the negotiation process work?

It is different for every client: some negotiate directly with their partner, some want everything negotiated through lawyers.  Some prenups are negotiated within a Collaborative Law process which involves lawyers and clients attending meetings to discuss and agree the content of the agreement.

How much will a prenup cost?

Costs for each party are generally between £5,000 to £10,000 (plus VAT and expenses) unless the agreement has a particular complexity.

What level of disclosure will I have to provide?

You will each need to give material disclosure of your financial circumstances. We will advise you, taking into account your particular financial position, how much disclosure is necessary.

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"Professional yet sympathetic manner and the team always fights hard to defend your interests"

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