Is a Pre-Nuptial Agreement enforceable?

Family Courts take a paternalistic approach to the matrimonial finances upon divorce. Judges will want to ensure that both parties and any children under 18 are not unfairly treated, so that they are left unable to be appropriately housed or maintained. The Court will also want to be satisfied that the agreement was properly prepared, with both parties having an appreciation of its implications and what claims they might be limiting on entering into this.

Each case turns on its own facts in Family law, but if specific criteria are met then it is very likely that a Pre-Nuptial Agreement will be accepted by both parties on divorce and upheld by a Judge:

• The Agreement must not create an inherently unfair outcome for any children or the couple. Solicitors work to ensure that appropriate needs are met but this does not mean that the agreement needs to reflect the sort of financial award that the Court would otherwise order.
• Therefore it is very sensible to keep the agreement under review over time or at key life events, such as having children, to ensure that it is still fair and appropriate over time.
• Pre-Nuptial Agreements should be negotiated, signed and executed no later than 28 days before the Wedding.
• Both parties should have the benefit of independent legal advice and a full appreciation of the implications of the agreement.
• There should be detailed financial disclosure of all relevant financial circumstances.
• Both parties should enter into the agreement freely and voluntarily, without duress.

Given the level of detail required, it is important to take advice from a solicitor specialising in Family Law months before getting married to ensure that these criteria are met and to ensure that your intended arrangements are very likely to be upheld if you do ever have to rely on a Pre-Nuptial Agreement.