02 February 2016
5 Factors That Might Undermine The Effectiveness of a Prenup
If you are considering entering into a prenuptial agreement, you’ll want to do everything possible to ensure that it will be upheld in court should your marriage end in divorce.
Prenuptial agreements – or prenups - set out how couples want to split their assets if they separate or divorce. They are usually agreed before a couple gets married, but it is also possible to enter into postnuptial agreements after the wedding.
Prenups are not legally binding in England and Wales, but courts cannot override them just because they think they know best. Providing the prenup does not leave either of the couple (or their children) in desperate need, courts should now respect the intentions they laid out in the prenup. To read more on how this works, see The Seven Principles of Prenups.
However, prenups can be called into question. Here are five factors that we often see undermining the effectiveness of a prenuptial agreement.
- Fairness - the terms of an agreement must be fair. If it does not provide any financial benefit to one of the couples then it is likely to be deemed unfair and not taken into account.
- Circumstance - the circumstances of the two people at the time of the agreement will be taken into consideration. Factors such as their age and maturity could potentially undermine effectiveness.
- Disclosure – if one of the couple has failed to provide full disclosure, or information this can mean the agreement will be given less weight.
- Conduct - unfair conduct, such as undue pressure or exploiting a dominant position. A party’s emotional state and any pressure put on them will be taken into consideration and could mean the agreement is not upheld or given less weight.
- Duress, fraud, or misrepresentation – These can all lead a court to refuse to uphold a prenup. For that reason, it is important for both parties to have received legal advice.
If your prenup has been entered into by both parties freely and with a full appreciation of its consequences, then it will usually be upheld by the court.
If you are considering a prenup and have any questions on the matter, call the family solicitors at Slater and Gordon for an initial consultation on freephone 0800 916 9055 or contact us online.