While rates are slowly declining, 42% of marriages in the UK still end in divorce. A prenuptial agreement can give people the opportunity to account for this eventuality and provide peace of mind. As stories circulate, however, of scenarios where prenups are "thrown out of court", you may be wondering - what makes a prenuptial agreement invalid? 

What is a prenuptial agreement? 

A prenuptial agreement (or “prenup”) refers to a contract that a person enters into with their partner prior to marriage. The objective of drawing up this contract is to limit disputes in the event of divorce or death. 

As such, a prenup usually outlines the respective assets and debts of both parties, and to clearly defines what should be considered “seperate property” (assets belonging to one party or the other) and what should be considered “matrimonial property” which may be divided between the parties in the event that the couple were to separate. This is to try to avoid the loss of important assets a person may have accrued independently of their partner - often before they met - in a traditional financial split. 

While prenups were once considered unusual (or something that was only relevant to the wealthy or those with a high public profile), they have been gaining in popularity, particularly where a person might be marrying for the second time. Research from the New Marriage Foundation found that one in five UK weddings now involve prenups, and that using a prenup neither increases nor decreases a couple's chances of going on to divorce each other. 

Why do people choose a prenuptial agreement? 

No one planning to get married likes to contemplate the possible end of their relationship. Indeed, the act of entering into a powerfully binding legal partnership is a testament to their faith in the strength of their commitment to each other. For many people, however, it is no longer considered unromantic to admit that life can be unpredictable, and events can play out in ways that the parties involved did not intend.

Couples having a clear idea as to the financial implications of separating from each other is considered by most to be a positive and something which provides a degree of certainty. It gives couples  the opportunity to resolve the division of the financial matters swiftly, when the alternative may be a daunting experience of a lengthy process wherethe complexities of modern relationships can make the resulting split of tied financial arrangements fraught and contentious. 

It is a common misconception that courts will pursue a complete 50/50 split of assets in the event of divorce. The objective of the Court is to divide the assetsin the fairest and most equitable resolution possible. However assets brought into the marriage by either party are not necessarily protected. This is particularly true if one party is more financially vulnerable than the other, or it is the case that a person's career benefited from the other taking primary on more domestic and childcare duties.

With this taken into account, people may choose to draw up a prenup for many reasons. These include (but are not limited to) provisions which will do the following:

Protection of pre-existing assets 

In the modern world, people are marrying later, with the average age of a person's first marriage in the UK now sitting at 31 years old. With years of adult life behind them before they tie the knot, it is not unusual for people to enter a marriage with more to protect - such as their own homes, pensions, businesses or savings. 

Navigation of significant wealth disparities 

When two people want to marry but one person has significantly more assets than the other, a prenup can help to ensure that should the relationship break down those assets are shared in a way both parties are comfortable with. This can be particularly relevant in instances where there is longstanding or inherited wealth - for example, a family farm - that one party may wish to ensure remains in their name, and won't be at risk of being broken up and sold in the event the marriage breaks down. 

Protection of future wealth 

Some couples choose, before marriage, to ring-fence the future earnings they expect to achieve later in life through career progression. 

Protection of child(ren)'s inheritance

Almost 15 % (14.7%) of people marrying in 2019 were getting married for the second time, and even those marrying for the first time may have children from a previous relationship. In these cases, getting a prenup may help to shield nest-eggs intended for the children's inheritance. 

For example, someone may face the tragic circumstances of having been widowed while bringing up young children, with their partner leaving them a lump sum in their will, or their interest in the family home After finding happiness later in life with a new partner, they may wish to protect this lump sum for the children of their first partnership, and not have it on the table in any divorce negotiations. 

When can a prenup be declared invalid? 

Since the landmark 2010 case of Radmacher v Granatino (in which the Supreme Court gave a prenuptial agreement “decisive weight”) it has become more common for prenuptial agreements to hold greater  legal weight in financial matters arising from Divorce  to the furthest extent possible without the drawing up of new legislation. 

Therefore, in the UK, while a prenuptial agreement is not automatically legally binding, the courts are very likely to recognise the agreement if it meets certain qualifying criteria as follows: 

a) The agreement must be freely entered into. 

b) The parties must have a full appreciation of the implications of the agreement. 

c) It must be fair to hold the parties to their agreement in the circumstances prevailing.

However, while UK courts recognise prenuptial agreements, they can also be contested, and courts are particularly wary of any prenup they feel could have been forced upon someone who was unhappy with the implications but felt under pressure to sign. 

The scenarios in which all or part of a prenuptial agreement may be considered invalid include:

• If any part of the agreement is unfair or discriminatory towards the children of the marriage (or previous marriages).
• If it can be proved either partner did not understand the implications of an agreement when it was signed.
• If the agreement was signed when one party was under coercion or suffering mental illness.
• If the prenup was created and signed in the absence of proper legal advice, representation and oversight.
• If one or both of the parties did not fully disclose their assets and debts.
• If the prenup contains inane requirements, particularly if they could be perceived as demeaning or controlling.
• If the document was poorly drafted or incorrectly filed.
• If the prenup is too weighted in the favour of one partner, and will significantly disadvantage the other.

How do I avoid a prenup being declared invalid? 

You can vastly increase the chances of your prenuptial agreement being upheld by behaving fairly, openly and reasonably. This includes ensuring both parties are upfront about their assets and debt, wholeheartedly agree to the arrangement, that the arrangement is fair and reasonable, that the needs of both parties are met by the intended division of assets and that it is preferable for the agreement to have been signed at least 28 days before the wedding, although agreements signed with less than 28 days before the wedding have been upheld by the COurt. 

The prenup should also be drawn up by a solicitor, and it is  preferential for both parties to seek legal advice independently of the other, so they can both enter into the agreement with a full understanding of what will happen in the event of a divorce.

Finally, you should not include any agreements which can be construed as degrading or unserious. Stories of frivolous or flippant prenup clauses (such as partners required to stay in a certain weight range or financial penalties for infidelity) may make entertaining reading in the celebrity press, but they are likely to undermine the possibility  of the agreement being upheld. 

What should you do if you think your prenup might be invalid? 

Unless at a review specified in the agreement, a prenuptial agreement cannot be modified once it’s been agreed upon or once you’re married. It isn't possible to go back and amend the document if you believe it to be invalid. If you created the document in the absence of legal advice and without a solicitor, it may not be enforceable in any case, so revisiting the agreement may be a futile gesture. 

If you are looking for a viable method of changing the terms of your prenup, the most practical option available to you is to enter into  a postnuptial agreement (“postnup”). A postnuptial agreement is the same kind of document as a prenup, and is treated in the same way legally, but it is created after you get married. They can also be useful in confirming, once the marriage has taken place, that both parties are still happy with the terms they set out in their prenup - strengthening that original agreement. 

Next steps:

The nature of prenuptial agreements means that they can concern matters that are very close to our hearts, whether that’s a home that has been passed down the generations or a gift you always intended for your children when you pass away. It’s only natural that the idea of a pre-arranged agreement being deemed invalid could cause anxiety, but if the matter is treated with openness and is approached in a reasonable manner, you can minimise any risk of this unintended outcome. 

If you have any questions about the topics raised in the article, or are considering having a pre-nuptial agreement drawn up, please contact one of our Family Law experts here.

Every member of our Family Law team understands the importance of combining an empathetic approach with the utmost professionalism to help you attain the best possible outcome.