The rise of prenuptial agreements in the divorce capital of the world

Over the years there have been headlines reporting on enormous divorce awards made by English judges which would be inconceivable in other jurisdictions. Prenuptial agreements are therefore a key tool for any English family lawyer, or any lawyer advising clients with connections to England, in terms of protecting assets during a marriage and on divorce. 

Prenuptial agreements have become increasingly common in England, largely down to a seminal shift in the courts’ approach since the case of Radmacher v Granatino in 2010, which held a French-German couple to the terms of their prenuptial agreement even where the financially weaker husband sought to be released from it. Since that decision English family law has witnessed a significant uptake in prenuptial agreements, and they are also now being tested in the courts as the early adopters of prenuptial agreements litigate their own divorces.

While still not enshrined in statute, a couple entering into a prenuptial agreement in England should expect to be held to its terms on divorce, provided always that the agreement has been properly negotiated and executed. 

During the drafting process, both parties should receive independent legal advice on its terms and implications, and the implementation of the agreement should not leave either party in a predicament of real need. There cannot be any duress or pressure to enter into the agreement, which translates into most couples aiming to sign the agreement at least a month before their wedding. Lastly, it is usual to provide financial disclosure so that both parties can understand what they may be giving up in terms of claims over the other’s assets.

Prenuptial agreements allow couples to put in place a framework which suits them and their individual circumstances. They can decide how assets should be held during a marriage and divided at its conclusion, and also the most suitable process for implementing a prenuptial agreement, i.e. via choice of law and forum clauses, as well as perhaps opting for a process such as mediation or arbitration instead of a court application.

There are many motivations for entering into a prenuptial agreement, from preserving dynastic wealth and upholding structures such as family trusts to protecting business interests. London is home to many international couples who are familiar with the concept of a prenuptial agreement from their home countries. It is vital that couples with connections to England consider entering into a prenuptial agreement, and that they seek expert advice in all jurisdictions which have or may have a connection to their marriage and wealth. Thankfully it has never been easier to connect and collaborate with expert lawyers across the globe.

Nevin is an Associate in the Kingsley Napley’s Family Team, Nevin advises on all aspects of family law and relationship breakdown including divorce, financial settlement, non-molestation and occupation orders and pre and post nuptial agreements.