In many parts of Europe, prenuptial agreements [pre-nups] and post nuptial agreements [post-nups] are held to be legally enforceable in divorce cases provided that both parties received sound legal advice and signed up to the nuptial agreement without being coerced or bullied into doing so.
In the UK, it has been very different. Prenuptial agreements and post nuptial agreements have been set aside by the family court when deciding how to settle marital income, capital or pensions upon divorce. It is left to the discretion of the court to decide what is appropriate and whether the terms of a prenuptial agreement or post nuptial agreement should be upheld or not. However, since the important leading case of Radmacher v Granatino and in particular in the light of the latest recommendations from the Law Commission, it is now clear that if certain formalities have been met at the time the nuptial agreement is drafted and executed, a court is likely to find that the agreement is binding on the parties or presumptively valid.
There will still be a discretion on the part of the court but this will be where the formalities of independent legal advice and disclosure have not been met or where the agreement creates some clear injustice (for example, where children have been born to the marriage and there needs to be some form of financial provision for them not dealt with in the nuptial agreement).
For this reason, many people in the UK who may be worried about what will happen to their income or assets if their marriage fails have decided that prenups or post nuptial agreements are worthwhile and are instructing their lawyers to draft the agreements. It is true that prenuptial agreements or post nuptial agreements still cannot be absolutely guaranteed, but it is also true that the case law is much more robust now in determining that a nuptial agreement is valid unless there is a very serious reason why it should be set aside as invalid. If you are concerned about protecting wealth on marriage, it is better to have a nuptial agreement in place than not to have anything at all even if there can be no absolute guarantee that all of the provisions of the nuptial agreement will be upheld by the court.
The most important thing is to get proper legal guidance from a specialist firm such as ours where all of ours lawyers have expertise in the area of prenuptial agreements, post nuptial agreements (or QNups to coin the phrase put forward by the Law Commission meaning Qualifying Nuptial Agreements). It is harder to challenge the validity of a nuptial agreement if the proper formalities have been met and our team can guide you as to what is required so that if the prenuptial agreement or post nuptial agreement is ever challenged in court, it will be difficult for the other party to succeed in having the agreement set aside.