Prenuptial Agreement Barristers

A prenuptial agreement is not automatically binding in England and Wales, because the court's power to make financial orders on divorce cannot be removed by contract. But since the Supreme Court's decision in Radmacher v Granatino in 2010, the court should give effect to a nuptial agreement that was freely entered into by each party with a full appreciation of its implications, unless in the circumstances prevailing it would not be fair to hold them to it. A well-prepared agreement will therefore usually carry decisive weight.

Whether an agreement survives scrutiny turns on how it was made and how fair it is when the marriage ends. The court looks for evidence that each person understood what they were signing and was not under undue pressure, which is why separate independent legal advice, full and frank financial disclosure, and signing well before the wedding all matter. The Law Commission recommended in 2014 that a qualifying agreement be signed at least 28 days before the wedding, and that has become standard practice, although it has not been made law.

Even a fairly made agreement will rarely be enforced in a way that leaves one spouse, or the children, with their reasonable needs unmet. Agreements most often protect assets that came from outside the marriage, such as inherited wealth, a family business, or property owned before the relationship, and set out how assets built up later will be treated. They are less effective at cutting a financially weaker spouse down below needs, especially after a long marriage or the birth of children the agreement did not anticipate.

A Direct Access Barrister can advise one of you on what the agreement should say, draft it or review a draft prepared by the other side, and advise on its likely effect. Each of you needs your own lawyer: the same Barrister cannot advise both. Where an agreement is later relied on or challenged in financial remedy proceedings, your Barrister can represent you in court.

1. 1

   Initial Advice

   Your Barrister finds out what you want to protect, your partner's circumstances and your plans for children, and explains what the court is likely to uphold and what it is not.

2. 2

   Financial Disclosure

   Both of you exchange disclosure of income, assets, debts and expected inheritances, usually as schedules with supporting documents. Gaps here are a common basis for a later challenge.

3. 3

   First Draft

   Your Barrister drafts the agreement, or reviews your partner's draft, in clear terms that a court can apply years later, with recitals recording how it was made.

4. 4

   Negotiation

   Your partner takes independent advice and proposes changes. Your Barrister advises on each point, bearing in mind that an agreement which meets both parties' needs is more likely to be followed.

5. 5

   Signing

   The final agreement is signed by both of you, often as a deed, with time to spare before the wedding. Leaving it to the last few days invites an argument that one of you was under pressure.

6. 6

   Keeping It Current

   Your Barrister can advise when the agreement should be reviewed, for example after the birth of a child, a large inheritance or a move abroad, and draft a postnuptial update.