Over recent years, we’ve seen a huge surge of interest in prenuptial agreements that allow couples to decide in advance how they would divide their assets if they separate.
English courts already recognise that prenuptial agreements should be enforceable under divorce law provided that certain basic requirements are met. A case established the principle in 2010 involving German heir Katrin Radmacher, who sought to protect her £106m fortune in the event of a marriage breakdown.
Following the Radmacher case, judges in England and Wales will take prenups into account if they are satisfied the agreement is fair, primarily in that it meets the needs of the financially weaker party. Although the family court still has the final word on any divorce, the judges are unlikely to make an order that differs from the terms of the agreement.
We attribute some of the increased interest in prenuptial agreements to wealthy parents seeking to protect their family assets. What we are seeing is that families with a lot of wealth often seek to protect it from the uncertainty that sometimes comes with a new member joining the family. With often complicated financial affairs within the family, these agreements can take into account not only personal but also business and trust interests. It can seem a little unromantic at a time when couples are looking forward to a long, happy future together, but certainty for everyone can make for a more stable time ahead for everyone.