We recommend entering a pre-nuptial agreement if:

• You and your partner have unequal levels of wealth.
• There are significant inheritance prospects or one of you may benefit from gifts from your family.
• There’s potential for future wealth, such as trust funds.
• There are assets acquired before the marriage that one of you wants to protect.
• It is a second (or subsequent) marriage where one of you has assets and/or children from a previous marriage.
• There are family businesses involved.
• There are existing debts.
• You’ve had agreements drawn up in other jurisdictions and need an equivalent agreement in England and Wales.

The starting point for financial provision in divorce is that all assets are considered part of the marital pot and available for distribution by the court. However, a correctly entered pre-marital agreement can effectively protect assets acquired before the marriage or expected in the future from one party’s family or efforts.

Pre-nuptial agreements are not legally binding in England and Wales. Nevertheless, if properly drafted, they can be fully considered by the court if your relationship ends. The court determines a fair allocation of marital assets in financial proceedings. Recent case law has upheld pre-marital agreements completely when they meet specific requirements:

• Financial and domestic contributions should be treated equally.
• The “yardstick of equality” (equal sharing of marital assets) should always apply unless there is good reason to deviate from it.
• The needs of both partners must be satisfied first.
• Compensation for any economic disadvantage suffered by a partner can be awarded (though this is rare and difficult to prove).
• If there is sufficient money to meet needs and any compensation, then the principle of sharing applies.

The overall aim is fairness to both partners.