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Given that we’re currently in the height of summer wedding season, you would be forgiven for thinking an article about how to enforce a nuptial agreement is an unromantic topic. However, after taking the time to ensure your current or future wealth is protected, I’ll be explaining in this blog how to enforce the terms of a nuptial agreement should things not go quite as you had planned.
Put simply, a prenuptial agreement is a legal agreement made between a couple before their marriage or civil partnership. Whereas, a postnuptial agreement is a legal agreement made between a couple following their marriage or civil partnership. Both pre and postnuptial agreements make provision for the division of the couple’s assets and income if they later separate or divorce. Prenuptial and postnuptial agreements are treated no differently when it comes to enforcing them.
A common misconception is that a nuptial agreement is legally binding. Under the current law the English courts are not bound to uphold the terms of a nuptial agreement. Therefore, a party wishing to rely on the terms of such an agreement would need to enforce its terms within financial remedy proceedings (where the court looks to determine how fairly to distribute assets). A nuptial agreement is one of many factors the court must take into account (in accordance with the provisions of s.25 of the Matrimonial Causes Act 1973) when deciding how to divide the parties’ finances.
The landmark case Radmacher v Granatino  provides guidance as to the courts’ approach to nuptial agreements within financial remedy proceedings. A nuptial agreement entered into freely by the parties, and with a full appreciation of its implications, is more likely to be upheld unless it would not be fair to hold the parties to their agreement, Radmacher v Granatino . Post Radmacher, parties are more likely to be found to have understood and indeed intended the consequences of their nuptial agreement. However, it is important to note that individual circumstances vary and ‘fairness’ is a subjective test, meaning the terms of nuptial agreements remain open to wide interpretation by the courts.
Although reforms have been proposed by the Law Commission, at the time of writing nuptial agreements are not enforceable as contracts. Neither can the terms of a nuptial agreement be enforced until the agreement has been made into a court order by consent or otherwise. This means that should an irretrievable breakdown of a relationship occur, a party looking to enforce the terms of a nuptial agreement must make an application to court for a financial remedy order within divorce or civil partnership dissolution proceedings.
Alternatively, the nuptial agreement can be made into an enforceable order if both parties agree its terms – this is known as a Consent Order and can be dealt with on a fast track paperwork basis provided there are divorce or dissolution proceedings in place.
For more information about pre and postnuptial agreements please do get in touch on 01273 646900.