Understanding The Complex Law Of Premarital Agreements

The UK has never had a specific law concerning the concept of a prenuptial agreement but, according to The Times, the popularity of such agreements is surging. The motivation behind an agreement is fairly simple; roughly 103,000 divorces are registered each year, and that number is rising. It’s simple pragmatism to want to arrange finances before the union, even if that does detract from the romance of the big day. Navigating prenuptial agreements is difficult in the UK, however, due to the lack of clear law; instead, case law reigns supreme, and helps to guide what can, and can’t, be included. As a relatively new piece of British case law, it’s essential learning for grad lawyers.

Starting at the start

Prenuptial agreements can encompass as much, or as little, as possible. They can be entered at any time, as long as they follow full disclosure of financial engagements and are signed at least 28 days before the wedding. This is important when considering engagement. Vintage styles of engagement rings are becoming more popular in the UK, and many couples are taking inspiration from the royals, according to Vogue, in using hand-me-downs for their own process. As a result, when a breakup happens, some individuals quite rightly want their family heirlooms returned. Prenups ensure this, as with every other financial asset – but are they enforceable?

Enforced through the court

The key case to consider when looking at the enforceability of prenuptial agreements is the Radmacher divorce case. As The Guardian highlights, this high-profile divorce involved over £106 million in assets, and took the UKs status as ‘divorce capital’ away. This clearly shows that such agreements can, and will, be enforced, and that’s good news for couples with a pragmatic outlook. Furthermore, one of the key factors in the rules outlined by the Supreme Court and the Law Commission enshrines the purpose of legal agencies in this agreement.

Ensuring the validity

Rather than any prenuptial agreement being automatically accepted by the courts, there has to be a multistage approach that includes, crucially, the use of legal advice. As the Law Commission highlights in their reported-stage roundup of recommendations concerning the provision of prenuptial or premarital arrangements and agreements, these agreements will now be given weight unless they are ‘unfair’. There are holes in the policy; in particular, the Law Commission recommends a lot more work should be done around defining what constitutes ‘financial needs’, a section of the current case law that is considered vague. For the purpose of most families, however, who are seeking to protect significant financial assets, the correct weight is there and can be used – with legal help.

For legal students, and especially those involved in family or contract law, this means there’s a lot to learn. The lack of concise law on the matter of prenuptial agreements makes them complex, but, really, they are by their nature complex agreements. Ensuring that they are properly enforced is the key factor, and that can be done with the right advice.