Whilst pre-nuptial agreements have been commonplace in the USA for many years, they have not been widely used in the UK for the simple reason that the courts have refused to recognise them.

However, recent cases in which couples who had made pre-nuptial agreements then went on to get divorced have caused a reawakening of interest in them. In one case the court decided to uphold a contract entered into by a couple who separated after less than two years of marriage and then divorced. The wife was claiming £1.7m from the husband, despite having agreed in the pre-nuptial agreement to settle for less.

An important factor in this case was that both the husband and the wife had the benefit of legal advice when drawing up the agreement prior to their wedding, which was said to have been entered into by the husband with some evidence of lack of enthusiasm. However, the wife was under no pressure to agree to the terms of the settlement, so the pre-nuptial arrangement - which gave her the use of a £1.2m house until their child came of age, a lump sum of £120,000 and an annual payment of £15,000 - was enforced by the court.

Most European countries do recognise pre-nuptial agreements and the Solicitors’ Family Law Association (recently renamed ‘Resolution’) has called on the Government to enact legislation in the UK to make such agreements enforceable in the UK courts.

In deciding whether to take a pre-nuptial agreement into account, the court will consider whether the parties to it had professional advice, how well they understood their financial circumstances and the impact of the agreement, how long ago the agreement was signed and whether any pressure was brought to bear on either party to sign it.

Changes in the family (e.g. the birth of children), in the financial circumstances of either party or lasting illness may also be relevant.

Using a properly-drafted pre-nuptial agreement can be a worthwhile exercise in appropriate circumstances. Contact Helen Hope if you would like advice on this matter.