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Marriage and the prenup

Marriage is a significant emotional and financial commitment. While it is a celebration of love and unity, it is also a legal contract – one of the most important many people ever enter and one that can carry serious financial implications if the relationship ends in divorce. This is where a prenuptial agreement becomes an invaluable tool.

A prenuptial agreement, or “prenup,” is a legal document that outlines how assets and liabilities will be divided in the event of divorce. While often viewed as unromantic, a prenup is actually a sign of proactive planning and mutual respect. It allows both partners to enter marriage with clarity and transparency about financial expectations.

What are the benefits?

One of the key benefits of a prenup is asset protection. Whether you are entering the marriage with property, investments, a business, or family wealth, a prenup helps best ensure those assets, including those held offshore, remain protected. They can be particularly important in second marriages or when one or both parties have children from previous relationships, allowing individuals to best preserve their family wealth.

Prenups can also protect both spouses from unforeseen debt. If one partner brings significant debt into the marriage, a prenup can specify that the debt remains their sole responsibility.

Another key benefit is reducing conflict in the event of a divorce. When financial matters are pre-agreed upon, it can significantly lessen the emotional and financial toll of divorce proceedings. It provides a roadmap, reducing litigation and promoting fair resolutions.

Are they binding?

The status of the prenup radically changed thanks to the Supreme Court case of Radmacher v Granatino in 2010. In that case the Supreme Court held that courts “should give effect to a nuptial agreement 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”.

As such, in England and Wales prenups are not strictly binding in the event of a divorce, but prenups that are properly entered into are highly persuasive and in many cases decisive unless the effect of the agreement would be unfair.

There are various steps that should be taken to enhance the efficacy of your agreement such as: (i) providing full financial disclosure; (ii) each obtaining independent legal advice; (iii) negotiating and reaching an agreement in good time before the marriage; (iv) ensuring both parties understand the terms of the agreement; and (v) providing for each party’s needs.

Final thoughts

Ultimately, a prenuptial agreement is not about expecting a marriage to fail; it is about being prepared. Much like insurance, it offers peace of mind and a foundation for honest conversations about money, goals, and values. For couples planning a life together, a prenup is not just smart legal strategy – it is an act of mutual care and responsibility.

Prenups are very important documents and the case law governing them is complex and constantly evolving, so expert advice is essential. Sinclair Gibson boasts one of London’s leading family law teams, with extensive experience of advising clients in relation to pre and postnuptial agreements. If you would like to know more, please contact us and someone from our expert team will be in touch.