When planning a wedding, a couple might consider a prenuptial agreement as a pragmatic step to protect their individual interests. In England and Wales, these agreements hold a unique status. Unlike in some jurisdictions where they are strictly binding, here they are viewed through a lens of fairness and relevance. This blog post explores the nuances of prenuptial agreements in England & Wales; particularly focusing on their longevity and adaptability over time.
The Nature of Prenuptial Agreements in England and Wales:
Prenuptial agreements in England and Wales are not set in stone. While they provide a blueprint for asset division should a marriage end, they are not automatically enforceable in a court of law. Instead, their enforceability depends on the circumstances under which they were signed and whether they meet certain fairness criteria at the time of the divorce.
Key Considerations:
Fairness and Change in Circumstances:
The primary consideration is fairness. What seemed equitable at the start of a marriage might not be fair several years down the line, especially if there have been significant changes in the couple’s circumstances, like the birth of children, changes in financial status, or long-term marriage.
Courts have the discretion to waive or modify prenuptial agreements. This is especially likely if they believe the agreement unfairly disadvantages one party, and cannot meet that person`s financial needs.
Legal Standards
For a prenuptial agreement to be upheld by a court on divorce, it must be entered into freely and knowingly by both parties.
Full financial disclosure and legal advice for both parties are essential prerequisites.
Each party must have had independent legal advice on the terms of the docuement before it has been signed and executed.
The agreement must be executed at least 21 days prior to the legal wedding ceremony, albeit it is best to work to at least 28 days before such date.
Periodic Reviews and Updates:
Couples are encouraged to review their prenuptial agreements periodically. This ensures the agreement evolves in tandem with their changing life circumstances. Trigger provisions will be built into a good prenuptial agreement, typical triggers for reviewing the terms are :
- The birth or adoption of your first child;
- Inheritance being received;
- Losing a job
- Suffering a serious injury
- being made bankrupt
- Rellocating abroad and therefore to another jursidiction
Regular updates can reinforce the relevance and fairness of the agreement, making it more likely to be upheld by the court. Once agreed terms are reached, the terms can be drawn up into a Postnuptial Agreement.
Conclusion:
Prenuptial agreements in England and Wales are living documents, reflecting the dynamism of marriage itself. Their effectiveness is not measured in their rigidity, but in their capacity to adapt and remain fair over the lifespan of a marriage. For those considering a prenuptial agreement, it’s a journey of regular reflection and adjustment, ensuring that it remains a fair representation of each party’s interests.
Whilst you can place a sunset clause on Prenuptial Agreements, so that they lapse at a certain point in time, they are intended to last the duration of the marriage.