Prenuptial agreements are growing in popularity, becoming a well-established conversation had with clients in the world of Family Law. These agreements are especially beneficial if a client has high net worth, seeks to preserve generational wealth, or there is a general imbalance that is sought to be protected. However, it is vital for clients to note that the timing of a prenuptial agreement (including instruction and drafting) is critical.
The Law Commission suggests that prenuptial agreements should be signed at least 28 days before any wedding. While this is not a strict legal requirement, it is a powerful consideration for the Family Court when assessing an agreement being upheld. Any prenuptial agreement that was concluded in the ‘final days’ prior to becoming wed, is vulnerable to being challenged. The reason for this is often because there is an implication of being rushed and being held to a deadline, which can interfere with the idea that a prenuptial is a free and informed decision. Such timing can make any future allegations of being pressured to sign to avoid disrupting the wedding, quite strong. This is especially where there is an imbalance of wealth or lack of time to seek legal advice. In those circumstances, an agreement may be viewed as unfair therefore compromising its enforceability. The majority of practitioners will not endorse particularly late instructions where a prenuptial agreement will inevitably be concluded at ‘doors’, if at all, as this coincides with their obligation to act in the best interests of their clients. Practitioners do not wish to advise and sign an agreement that they feel is open to being varied or disputed with relative ease, as this is the whole rationale for the agreement in the first place.
Early timing for the Family Court can also signal fairness and transparency
Early timing for the Family Court can also signal fairness and transparency, indicating a couple that are content to discuss their finances and have considered their financial future in depth. The earlier the decision is made, the longer that both parties have to obtain independent legal advice, consider implications carefully and negotiate terms without emotional pressure. Last minute agreements can appear opportunistic and can be fraught with impulsive concessions, particularly where family wealth or wedding expenses are involved.
The law of England and Wales requires that both parties enter into a prenuptial agreement freely, with full understanding and necessary time for reflection. Where timing can suggest coercion or emotional leverage, the agreement could risk carrying little weight in the eyes of a Court.
A client is always able to approach a solicitor prospectively, even if the engagement has just taken place and there is no booked wedding or definitive date. Solicitors should ideally be provided with a minimum period of 3 months to consider taking instructions and to draft, with some agreements being negotiated over several more months to over one year, depending on the complexity. If a client is uncertain about how long their agreement may take, especially if there still needs to be a second solicitor sought and no disclosure or consensus on the table, they should always approach early.
Postnuptial agreements
Postnuptial agreements exist in their own right, and can have the same enforceability as a prenuptial agreement – except this agreement was made after the wedding. If a prenuptial agreement cannot be achieved in time for the wedding, or without concerns about duress arising, a solicitor will often advise to let matters drift and to convert the terms into a postnuptial agreement once the wedding has taken place. However, this does not mean that there is no time-sensitivity with a prenup. If a postnuptial agreement is achieved by consent after marriage, this is generally unproblematic, but a prenuptial agreement evolving can change the leverage and scope for negotiations between the parties.
Once the wedding is finalised, urgency can often fade and discussions can be postponed or dragged out whilst priorities change. A number of clients who face divorce can indicate that this was always their intention, but became less of a priority until the marriage broke down. This can leave them, by return, exposed to unintended claims, family disputes over inherited wealth or business complications if ownership is contested.
Matrimonial Causes Act 1973
Further, once a marriage has taken place, the legal landscape changes from the start. The couple are now subject to the guidance under the Matrimonial Causes Act 1973 if they separate, meaning that full financial claims arise. Unlike a prenuptial agreement, a prospective document, a postnuptial is negotiated against a backdrop where statutory rights now already exist and there is less incentive for the weaker party to engage.
A postnuptial agreement relies heavily on ongoing cooperation. If one party withdraws or ultimately refuses to engage, the marriage has already occurred and there is no contractual protection in place. In those circumstances, the default position is that the Family Court will keep its full discretionary powers on divorce. This can significantly weaken negotiating leverage - the wedding itself can provide a natural incentive, without duress, to conclude matters for both parties beforehand.
For these reasons, while postnuptial agreements are a valuable alternative where a prenuptial agreement could not be achieved safely, they should not be viewed as a risk-free back up or a reason to delay instruction of a solicitor. The safest course of action remains early planning, either well in advance of the wedding or as soon as practically possible.
Ella Vine
Ella Vine graduated in Law from Cardiff University and developed her commitment to Family Law through frontline Court volunteering, supporting individuals without legal representation
She also led the University’s Innocence Project, overseeing investigations into potential wrongful convictions. Ella has since built practical experience as a paralegal and brings an organised approach to client support.
