CLM Solicitors - Private Services - Family - Fact Sheet

Pre-nuptial agreements are agreements made by couples in contemplation of their forthcoming marriage. Pre-partnership agreements are agreements made by same sex couples in contemplation of their forthcoming civil partnership.

Pre-nuptial and pre-partnership agreements set out what should happen should the marriage or partnership fail. They are widespread in the US where celebrities and businessmen frequently use them in order to protect their assets.

Although pre-nuptial and pre-partnership agreements are not actually legally enforceable in the UK courts, they are becoming more persuasive and are used as a starting point to ascertain what the party’s intentions were before the marriage or civil partnership.

The more recent the agreement, and so the shorter the marriage or partnership, the better chance the agreement stands of being upheld by the UK courts. This is because the circumstances at the time of the dissolution of the marriage or partnership are more likely to be the same as the circumstances contemplated when the agreement was made.

Pre-nuptial and pre-partnership agreements cannot be made once the parties have married or become civil partners.

If the parties have a child then the pre-nuptial or pre-partnership agreement will no longer be valid.

An agreement cannot be made less than 21 days before the marriage, or signature of the partnership document. This is because both parties have to enter the agreement freely, without any pressure from the other.

Before entering into an agreement both parties will need to obtain independent legal advice, and must also both be fully aware of the other party’s financial and other circumstances.

Upon entering into the agreement both parties should fully intend to be legally bound by it. They should be aware that unless an application is made to Court, the agreement as a deed is a legal contract between the parties and so is subject to all normal contract law. An application to Court to overturn a pre-nuptial or pre partnership agreement can only really be made if there has been a change in circumstances, if the agreement did not take all factors into consideration, or it is grossly unfair.

Contents of an Agreement

The agreement can include anything that the parties want it to, but will usually include the following:

What assets were owned by each party before the marriage or partnership.
What debts each party had before the marriage or partnership.
How the property will be owned.
Who will pay the outgoings on the property.
Who will undertake and pay for the maintenance to the property.
The circumstances in which the parties will decide to dissolve the marriage or partnership.
What arrangements will be put into place on the dissolution of the marriage or partnership.

Arrangements on the Dissolution of the Marriage or Partnership

This is usually the most important section of the agreement, and it will often include arrangements for the following:

Who will issue divorce, or dissolution, proceedings.
How the assets will be divided, and why they will be divided in that way.
Whether one person can buy the other out of the property.
Whether the property will simply be sold, and if so how the proceeds of sale will be divided.
Who will move out of the property.
Who will be responsible for paying the outgoings on the property whilst arrangements are put in place.
How the contents of the property will be divided.
How the debts will be divided.

Time Scale

If the couple is in agreement to the contents of the agreement then it will only take a few weeks to draft the document, ensure both parties have taken independent legal advice, and arrange signatures. It will of course be longer if any negotiating needs to take place.