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Are Pre-nuptial agreements enforceable?
Jan 2025
Divorce & Family
6 MINS

Are Pre-Nuptial Agreements Enforceable?

Georgia Meyer, Trainee Solicitor, Divorce & Family

While not the most romantic topic and often not at the forefront of a newly engaged couple’s minds, discussing asset division before marriage can be a prudent step towards securing a financial future together.
A pre-nuptial agreement is a bespoke legal document that couples can consider entering before getting married. This agreement records how their assets and liabilities will be divided if there is a separation and/or divorce. It also outlines the rights and responsibilities of each party in the marriage.
While this agreement is not automatically legally binding, it is highly persuasive upon divorce. Anyone entering into a pre-nuptial agreement should expect the court to give effect to its terms, provided they did so freely and with a full appreciation of its implications, unless it would be unfair to do so.
For more information regarding the benefits of having a pre-nuptial agreement, please see this article.

NM v PM [2024] EWFC 199 (B)
It is a common misconception that pre-nuptial agreements are never legally enforceable.
In a recent judgment in NM v PM, the Court upheld an existing pre-nuptial agreement, even though the parties entered into the agreement without legal advice. This case highlights the importance of seeking legal advice when entering into a pre-nuptial agreement and underscores the courts' willingness to enforce such agreements.

Background

  • The parties married in 2010 and separated between 2020–2023.
  • They entered into a pre-nuptial agreement one month prior to their marriage, which excluded certain assets from equal division upon separation.
  • The Husband owned three properties, two of which were acquired during their marriage.
  • The Wife owned one property and had lower income and no significant pension, while the Husband had substantial pensions and a higher income.

Key Issues
The two properties acquired by the Husband during the marriage were funded by sources traceable to pre-marital assets. A key dispute was whether these properties were considered matrimonial assets or excluded under the pre-nuptial agreement.
The Husband argued that the pre-nuptial agreement specified that each party would retain their respective properties, making it fair under the circumstances that properties in his sole name, including those acquired during their marriage, not be divided equally. The Wife claimed that one of the properties acquired during the marriage was a second family home and should therefore be shared.

Findings
The Court found that the prenup was freely entered into by both parties, with a full appreciation of its implications, and that it was fair to uphold the terms, even though they did not obtain legal advice beforehand. Therefore, the prenup was upheld.
The Court determined that while the parties did spend some time at the second family home, this had not “matrimonialised” the property. Consequently, it was not subject to an equal division between the parties.

Conclusion
A pre-nuptial agreement does not make separation and divorce more likely if approached in a pragmatic and sensitive way, pre-nuptial agreements can be considered a sensible form of financial planning, similar to insurance. However, it’s crucial to approach these agreements with caution and to seek expert legal advice.
If you are considering a pre-nuptial agreement, our specialist divorce solicitors would be happy to discuss your specific circumstances and explain your options. You can also read our more detailed “Guide to Nuptial Agreements.”

If you would like to discuss your options with a member of our specialist divorce & family team, please do not hesitate to get in touch.

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