2026: Year of the Prenup?
In his latest legal insight, Associate Director Ryan Elliott discusses the increasing prevalence of pre-nuptial agreements in Northern Ireland and a divorce involving a ‘prenup’ that was recently considered in the Court of Appeal.
Why Prenuptial Agreements Are Becoming More Common in Northern Ireland
Once confined to the A-listers of Hollywood and the uber-wealthy, more and more couples in Northern Ireland are signing pre-nuptial agreements before tying the knot.
A pre-nuptial agreement, or ‘prenup’ as they are commonly known, is a private agreement between a couple before they marry, recording the couple’s intention as to what should happen to their assets if they ever separate. At the very least, a prenup should include a list of the assets owned solely and jointly by the couple, the value of those assets, and how those assets will be divided between the couple.
A prenup, whilst by no means a romantic endeavour, does not signify a lack of trust or love between a couple. A well-considered prenup will afford the couple (and often their respective families) certainty in their future together, protect the family’s wealth, and minimise conflict in the event of a divorce.
When Is a Prenuptial Agreement Enforceable?
Typically, a divorcing couple will be bound by what they have agreed in a prenup so long as the following criteria are met:
• The prenup is in writing;
• The couple each received separate and independent legal advice;
• The couple made full financial disclosure before entering into the prenup;
• The terms are fair and reasonable;
• The needs of any children of the family are not prejudiced;
• There was a sufficient period of time between the signing of the prenup and the wedding;
• It a free and willing agreement.
Recent Case Law: The B v B Decision
In a recently published divorce judgment, B v B, which went all the way to the Court of Appeal last year (at enormous cost to the spouses), the panel of three senior judges affirmed that Northern Irish courts should adopt and follow the principles as laid down in the UK Supreme Court’s 2010 decision of Radmacher v Granatino, and that prenups “must be given appropriate weight” in divorces. However, in the case of B v B, a child of the family was born after the prenup was signed, leading to the following judicial commentary,
“In the circumstances where there was a child of the family that came after the date of the prenuptial agreement, the court would have to look at proper provision in taking into account the welfare of any minor child of the family … Were this a case of two spouses without a child, the prenuptial agreement would have prevailed. However, the landscape is different because of the child … Fundamentally, it is the needs of the child which must be the focus of the court’s analysis.”
It follows that in Northern Ireland, the terms of a prenup cannot be to the detriment of any minor child of the family or either spouse with care responsibilities for that child. The starting point for a court will be the needs and welfare of any minor child of the family as enshrined in our 1978 legislation. We consider that this will be the primary reason for divorcing spouses not being held to the precise terms of their prenups for years to come.
What Makes a Prenup Fair and Reasonable?
Prenups which simply record that each spouse will keep what they bring into the marriage and that each spouse will keep what is held in their sole names during the marriage, tend to be unbalanced in favour of the much wealthier fiancé. In some cases, that may be well and good, but in the circumstances of a couple going on to have children during the marriage, which often leads to one spouse sacrificing career prospects and earning capacity, such a prenup is unlikely to be viewed as fair and reasonable by our pragmatic matrimonial courts. Sufficient consideration must be given as to possible future circumstances, the ‘what ifs’ of married life. This responsibility does not exclusively rest with the couple, but also with their legal advisors who have been tasked with preparing a prenup that can and will be honoured by the couple if they ever separate.
The Importance of Timing When Signing a Prenup
We consider that the second most common reason for prenups not being upheld in divorces, will be that there was insufficient time between the prenup being signed and the couple’s wedding. We are receiving a significant volume of enquiries from people who are marrying within a couple of months (sometimes weeks) of contacting us for the first time. This is insufficient time for a meaningful and valid prenup to be contemplated and entered into. If you think that a prenup might be a sensible thing to do, then you should immediately have a conversation about it with your fiancé. If your fiancé says that they are agreeable to a prenup in principle, then you should immediately contact a solicitor with the expertise to advise and navigate you through this complex and niche area of family law.
Specialist Legal Advice on Prenuptial Agreements in Northern Ireland
Cleaver Fulton Rankin are experts in Matrimonial law and have the largest Private Client Department of any law firm in Northern Ireland. We are highly experienced in advising clients on wealth preservation, estate planning, and nuptial agreements.
Please visit matrimonial and family law for more information.
This article has been produced for general information purposes, and further advice should be sought from a professional advisor.
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