Is a prenup legally binding?

Like many brides-to-be, Britney Spears announced her engagement with a post on Instagram – a short video clip of Britney and her fiancé, Sam Asghari, posing and smiling with an enormous diamond solitaire glistening on Britney’s finger.

Britney’s post received some 3,634,700 likes and over 115,000 comments and, mixed in with the “congratulations” and “so happy for you” messages, was a notable and repeated urge for Britney to “make him sign a prenup”.

Sam was quick to make light of the comments posting “… we’re getting iron clad prenup to protect my jeep and shoe collection in case she dumps me one day” (followed by some laughing face emojis).

Pre-nuptial agreements are becoming increasingly common

Whilst suggesting a pre-nuptial agreement (or “prenup”) might not be an instant reaction when most couples announce their engagement, pre-nuptial agreements are becoming increasingly common, particularly in circumstances where:

  • There is an imbalance of wealth between the parties;
  • One party wants to protect inherited and/or family wealth; and/or
  • One or both parties wish to pass assets on to their children from a previous marriage.

Of course, any pre-nuptial agreement between Britney and Sam would be under the law of the particular state in the US.

In England and Wales, perhaps the most common question in respect of pre-nuptial agreements is “are they legally binding?”

What are the legalities in England and Wales?

The short answer is no – but don’t let that put you off. A pre-nuptial agreement is not, in and of itself, legally binding in England and Wales, and it is therefore not possible to guarantee that a pre-nuptial agreement is “iron clad”. This is because, at present, a married couple cannot override the court’s broad discretion as to how their assets and income should be divided in the event that they divorce.

However, it would be a mistake to believe that a pre-nuptial agreement is not worth the paper it is written on – to the contrary, it could make a significant difference to the assets that the parties each receive on divorce (and – jokes aside – much in excess of a Jeep and shoe collection). A properly drafted pre-nuptial agreement can be given considerable weight by a court when determining how a couple’s assets should be divided on divorce.

Further, the Law Commission has proposed that, in future, a nuptial agreement should be legally binding if it meets certain criteria. The reference to a “nuptial agreement” covers both pre-nuptial agreements and the perhaps lesser-known post-nuptial agreement, which is entered into after marriage. It is therefore important to seek specialist legal advice when considering entering into a nuptial agreement.

How Moore Barlow can help

If you are considering entering into a nuptial agreement, or would like to receive advice as to whether such an agreement will assist in protecting your assets, please contact our family team.