Guide to Prenuptial Agreements in the UK


Despite an uninspiring track record of practical application in the UK, prenuptial agreements are an increasing trend among people preparing to marry. But if the worst happens and your marriage does hit the rocks, just how much good is a prenup actually going to be in court? Is it worth the effort and expense to create one? What are the advantages you can gain? If these are the sorts of questions you have buzzing through your head, read on to discover more.

Legally speaking, what is a ‘prenup’?

A prenup (or Prenuptial Agreement) is an agreement between people who are about to get married about what should happen if their marriage is terminated early. Specifically, the prenup tries to establish what should happen when one of the parties engages in some action that can be held to be a direct cause of the early termination of the marriage.

Why are prenups controversial?

Some people hold that a prenuptial agreement is symbolic of distrust, and this is not a healthy basis on which to enter into a marriage. The counter-argument – and an very valid one – is that a person who enters into a marriage with truly honourable intentions will have no hesitation to sign a prenuptial agreement, and furthermore an unwillingness to do so may be held to be a sign that the person not only acknowledges the possibility that they may indulge in improper conduct, but perhaps that they expect to do so.

Traditionalists feel that prenups are potentially a threat to the sanctity of marriage, while progressives feel that we, as a society, are far past the point where most marriages have any sanctity about them. It is not a debate that will be settled easily.

Who gets prenups?

In general, it is more common for a prenup to be requested when one party would stand to make significantly more financial loss than the other party in the event of a split. So for example, if one of the partners to the marriage is a high-wealth individual and the other is a person of modest means before the marriage, the wealthier partner may seek to establish a prenuptial agreement in order to settle any concerns over the sincerity of the marriage (or perhaps to satisfy themselves that their intended spouse is marrying for the right reasons).

Sometimes it can also be the case that the family of one of the parties insists that a prenuptial agreement should be arranged before they will consent to the marriage taking place, although in law such insistence is not valid unless one of the persons getting married is less than 18 years of age. Often, in such cases, the parties will agree to establishing a prenup in order to remove adverse pressure from relatives who may be opposed to the marriage or who harbour suspicions about the intentions of the “newcomer”.

It could be argued, of course, that prenuptial agreements are just common sense, and however “unromantic” they may seem, everyone should make a prenuptial agreement just in case things don’t turn out as expected. There isn’t any good reason not to make such an agreement, as if you are both truly sincere in your intentions going into the marriage there is nothing to fear from the agreement. On the other hand, however, if either party does infringe about the conditions of the agreement, there may be some protections for the affected party that they would otherwise regret not having previously established through a simple agreement.

How have the courts responded to prenuptial agreements?

Actually a lot worse than you’d probably expect, but usually because the agreement wasn’t fair in the first place, or because the circumstances of the estranged partners had radically changed since the agreement was made. The prevailing view seems to be that family law trumps contract law, and the ultimate aim of family law courts is to try to ensure the fairest outcome.

Some people attempt to build in quite unfair provisions to their prenuptial agreements, and when this is the case, the courts are likely to take a poor view of the intentions behind those unfair provisions. In fact, if you clearly have intended to make unfair conditions, it can backfire and cause the courts to be far less generous towards you than they would otherwise be.

Therefore, you should do what you can to ensure your prenuptial agreement is fair and realistic, both in terms of the conditions that are stipulated and in terms of the provisions and/or penalties that are written into it.

Does this mean prenups are not worth bothering with?

It certainly does not mean that! For a start, not every divorce actually requires a court hearing, and a properly established prenuptial agreement can help to ensure that a lengthy court proceeding is not necessary, thereby saving you both a lot of money.

A good prenuptial agreement sets out exactly who owns what and how any assets should be divided if the marriage ends prematurely, and perhaps also what sort of assurances should be in place for the spouse who will be most likely to be financially worse off as a result of the split.

If neither party is likely to struggle to survive, courts are unlikely to make substantial demands regarding on-going support. Generally speaking, the procedure would be to simply divide the assets of the couple as fairly as the court can determine possible.

But courts will still take the existence of a prenuptial agreement into consideration, and will evaluate the agreement on its merits. If the agreement is mostly fair, the court is likely to apply some or all of the provisions, particularly if one of the parties has clearly breached the conditions of the agreement.

Therefore a prenup is a valuable document that can help judges to settle divorce matters more easily, provided that the agreement is valid in the first place.

How can I ensure that my prenup will be considered valid and binding?

The important thing is to ensure that it is properly created. Every condition and provision of the agreement must be entirely fair and should not appear to stack the situation in favour of one party over the other.

For example, if Susan and Robert are getting married, their prenuptial agreement should not have wording that only talks about what will happen if Susan commits adultery. There should be something in there about what will happen if Robert does the same, and it should appear that the conditions will be equally punitive. Otherwise a lawyer would be easily able to persuade a court that the agreement should be entirely disregarded on the basis that it wasn’t fair to begin with.

How can Hylton-Potts help me with creating a valid prenup?

Hylton-Potts employs legal experts who understand all the relevant divorce laws, and who have experience in handling complex divorce matters. Therefore they can assist by applying this knowledge to the creation of an entirely fair prenuptial agreement that will stand up to vigorous legal testing.

Courts will respect a prenuptial agreement if it is fair, and if neither party will suffer egregious hardship as a result of the application of the provisions of the agreement. Our job is to design your agreement in such a way that it will be obvious to anyone reading it that neither party was unfairly disadvantaged by the conditions and provisions of the agreement, and that both parties entered into the agreement willingly.

You’ve been talking a lot about unfair conditions. Can you provide any examples?

Certainly. While some of the items in the following list may sound too ridiculous to be true, I can assure you they are all taken from real prenuptial agreements that people have consensually signed.

  1. Conditions about how often the couple should have sex
    Some people seek to limit how often they will have sex with their spouse, which can make you wonder why either of the people involved are interested in getting married. There are others who want to make sure that they get enough sex, and want to make it a legally binding condition on the other party. While it’s easy to get conditions like this put into contract form, it’s much harder to get any legal recognition of them.

For one thing, you can’t legally obligate somebody to have sex with you unless there was some sort of exchange of goods or services taking place, and in the UK it’s not currently legal to exchange sex for goods and services, so it’s legally an impossibility to have a “minimum sex” clause. You can have it, but you can’t enforce it, because requiring to have somebody have sex against their will is breaking much more serious laws!

As for the “maximum sex” clause, it’s entirely unreasonable, and infringes on personal freedom. Courts will never support such a clause unless it is instituted to protect the health of one of the individuals, in which case you would need to demonstrate frailty in some way. You can’t really expect to front up to court and say “I should be allowed to divorce Dave because he asked me to have sex 15 times last month”… you’ll just be laughed out of the room.

  1. Conditions about physical shape
    Imagine somebody giving themselves just cause to divorce you because you no longer fit their ideal concept of physical beauty. Believe it or not, some people have written “weight clauses” into their prenuptial agreements, to make sure their spouse does not become too fat or too thin, and even stating that a certain amount of cash needs to be forfeited depending on the actual weight gain.

Courts won’t normally allow you to dictate such terms, as they are completely unreasonable. When you marry, you swear an oath that you will love the other person in sickness and in health, which certainly includes the states of obesity and anorexia.

  1. Conditions about how much time you can spend with friends or family
    Hate your mother-in-law? You may think it’s possible to legally restrict how much time your husband or wife can spend with her, but actually you can’t do that. You’re not allowed to infringe upon another person’s freedom unless that freedom causes you measurable harm, such as in the case of infidelity. Just because you’re annoyed that your spouse spends time with somebody you dislike does not give you reasonable grounds to divorce them or to obtain an unfair portion of your joint assets.
  2. Conditions related to work or hobbies
    Just as you can’t legally dictate who your spouse spends time with, you also can’t dictate where or when they work, nor can you dictate what they do in their spare time unless it directly causes measurable harm to you.
  3. Conditions about children
    If you really can’t stand children, the idea of your marriage resulting in a pregnancy might be especially revolting to you. Even so, a clause that prohibits the production (or adoption) of children is completely invalid. You could not, for example, stipulate that in the event of a pregnancy occurring, the wife must undergo an abortion. It would be completely unconscionable for a court to rule in favour of the destruction of life in order to satisfy one person’s vanity. Equally, you could not force your spouse to undergo a sterilisation operation.

    The other side of this is when one of the parties discovers that the other is incapable of producing children. Again, you can’t legally use this as a reason to obtain a divorce or annulment unless you could establish that you had been deceived. Now that is an important matter, because in the case of infertility or impotence, if it was known prior to the marriage that these conditions existed but the fact was not disclosed to the spouse until after the marriage, this would be sufficient grounds for divorce or annulment, because there was deliberate deception involved. If the matter was only discovered by both parties subsequent to the marriage, there is no deception.

Prenuptial agreements are a sensible precaution

Marriages do unfortunately break down sometimes, and it can give a couple some peace-of-mind if they have already established a legally valid and perfectly fair agreement between them about what will happen if their marriage does not go the distance. Indeed, this could give couples the confidence to marry where they may otherwise have lacked it.

Hylton-Potts can help you with any legal needs you have, including creating prenuptial agreements. Call us on 020 7381 8111 or send an email to [email protected] to obtain more information about the services we provide.

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