As the UK Prenuptial Agreement becomes more common, many people are unsure of its exact legal standing.
A Prenuptial Agreement (or Prenup) is made when a couple, prior to marriage, agree on the division of assets should they eventually divorce. Usually this means that the assets taken into the marriage by each individual remains theirs should the marriage end. It should also mean there will be no squabbles over who takes what in the case of a divorce.
The Prenup avoids added trauma when a marriage ends. Emotion at such times are raw, and this can only be worsened if there is a battle over assets. If who owns what is laid out in advance in a Prenuptial Agreement, such unpleasantness may be avoided. However, when it comes to people living in the United Kingdom, is the Prenuptial Agreement legal?
It's certainly not illegal. However strictly speaking a prenup has no legal standing in the United Kingdom. But this should not mean that you and your former spouse should refrain from making such an agreement. In a case which gained much publicity, the Supreme Court in England did take a UK Prenuptial Agreement into account when protecting the assets of heiress from her former husband. So although the prenup is not legally recognised at the moment, it looks like it will start to carry more weight in court. So if you are thinking about making a UK Prenup, you should carry on. But make sure that it is watertight to ensure that any United Kingdom court will accept it.
Strangely, if the couple lives together but doesn't get married, any agreements made concerning assets are legally binding. It is only should they marry, and eventually divorce, that the division of those assets is a case for the courts.
There is nothing to stop a couple planning to marry making a Prenuptial Agreement in the UK without legal assistance. However, as the UK courts do not have to recognise them, all Prenups should be closely examined to make sure they will stand up to legal scrutiny. So it is advisable to employ a specialist UK Prenuptial Agreement Solicitor when drawing one up. Your lawyers will make sure that you have dotted the "i's" and crossed the "t's" as well as checking you have prepared for any other possible legal problems, for example by making the prenup more than 21 days prior to marriage. The 21-day rule is in place to ensure that no-one can be deemed to have signed the Prenuptial Agreement while under duress.
Although the UK prenup has no legal status here, the courts may take it into account. So it is in a couple's interest to ensure they drawn up in such a way to withstand legal scrutiny.