As the law currently stands, in England and Wales pre-nuptial agreements are not strictly binding if there is a divorce or dissolution of the civil partnership. However, the terms of a pre-nuptial agreement may be decisive in the event of a disputed divorce/dissolution that is dealt with by the court unless the effect of the agreement would be unfair.
It is not possible in England and Wales to have a fully binding agreement before marriage or civil partnership about what will happen on divorce or dissolution. This would require a change in the law by Parliament. This is because the law of divorce is deliberately very flexible and gives the court a lot of discretion when deciding what is a fair settlement. The court must also try to meet the reasonable needs of both of the couple and any minor children.
In other countries, pre-nuptial agreements may be binding provided certain requirements are met. Where there is an international element advice will need to be sought from a specialist lawyer in that jurisdiction. (For example one or both of the couple may not be a UK citizens and there may also be significant assets held overseas).
To improve the prospect that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full (called financial disclosure), and take independent legal advice on the agreement and its effects. You can negotiate an agreement using mediation or collaborative law, or by using solicitors to negotiate and draft the terms of the agreement on your instructions. Your family lawyer will help you find the process most suitable for you.
There is not a rule which says exactly how far in advance of the wedding or civil partnership that the prenuptial agreement should be finalised, however, the later that the agreement is finalised, the more open to challenge it may well be.
It is good practice to finalise the agreement in good time before the wedding or civil partnership ceremony (ideally a minimum of 21 days prior to the ceremony).
This is so that neither of the couple feels that they have been placed under any undue pressure to agree to anything. Dealing with financial disclosure, negotiations and legal advice can take time, so it is important to plan in advance.
If your finances, of one of the couple are complex (for example involving trusts, or international assets) then extra time will be needed especially if specialist advice is needed from an accountant or a foreign lawyer.
Prenuptial agreements are generally less likely to be considered to be unfair (or to put it another way – are more likely to be considered to be fair) if they were made recently, or if circumstances have not changed since the agreement was entered into. Also, if there is clear evidence to show that both of the couple knew exactly what they were agreeing when the agreement was made, both legally and financially, and without any undue pressure having been applied by the other.
It is usually a good idea to include provisions which require the agreement to be reviewed regularly – perhaps every three – five years, or when a specified ‘trigger’ event occurs, for example the birth of a child, or if either of the couple were to have health issues that impact on your earning capacity.
If the prenuptial agreement is varied significantly or rewritten it will effectively become a postnuptial agreement. But, for the agreement to be most likely to be held to be effective – it should be treated as a living document and subject to regular review. The same is true with Wills. Everyone should have a will and they should review them regularly.
It is possible that the court can uphold part of a prenuptial agreement while deciding that a different part of the prenuptial agreement is unfair.
It goes without saying that these are not agreements that should be entered into lightly. No one should enter into a prenuptial agreement unless they intend to be bound by its terms later on.