What Happens if You Sign a Prenup and Get Divorced?

A prenup can make the process of divorce more straightforward in the UK, but it is important to understand that they are not legally binding. As such, even if you have a prenup, it can still be challenged in the family court based on its validity and your financial needs. A prenuptial or post-nuptial agreement states how certain assets should be ‘ring-fenced’ (e.g. for the benefit of children from a previous marriage). However, it is only a starting point for your divorce financial settlement. Whether a prenup is upheld in court will depend on several factors, such as the length of the marriage, whether the document was entered into fairly and legally, the financial needs of the other party and any children from the marriage, and whether the marital assets are sufficient to achieve a fair financial split.  

What would invalidate a prenup in the UK? 

A prenup may be considered invalid by a judge in certain situations, including if: 

• It has not been drafted properly by an experienced family law solicitor 

• It was not entered into freely (i.e. one party was coerced into signing the agreement). The court may take into account a party’s emotional state at the time of making the agreement and factors such as age, maturity and previous experience of long-term relationships 

• One or both parties did not fully understand the implications of the agreement 

• The parties did not seek independent legal advice from a family law solicitor 

• It includes nonsensical requirements 

• Lack of full financial disclosure (including debt) 

• The agreement was signed very soon before the marriage 

• It would not be fair to hold the parties to the agreement 

If you want to challenge a prenup following divorce or take steps to make sure that your agreement is robust, please speak to our family law solicitors.  

Reasons to contest a prenup in the UK 

You may wish to contest a prenup in the UK if any of the following apply to your situation: 

• You didn’t fully appreciate the implications of the prenup 

• You didn’t want to sign the agreement, but you felt under pressure to do so 

• You have discovered that the other party did not fully disclose all of their assets (or has hidden certain assets) 

• There has been a change in financial circumstances, e.g. a certain asset no longer exists, or income has changed 

• Your marital assets are not sufficient to cover your financial needs and those of your children 

You didn’t fully appreciate the implications of the prenup 

Before signing a prenup agreement, it is essential that both parties have all of the information necessary to make an informed decision. If your agreement was not “freely entered into by each party with a full appreciation of its implications”, this is a strong reason to contest your prenup. A judge will consider whether there was a material lack of disclosure, information or advice. 

Pressured to sign the prenup 

Both parties must enter into a prenuptial agreement of their own free will, without undue influence or external pressure. If you felt under pressure to sign your prenup, this may provide a basis for contesting the agreement. 

Lack of full financial disclosure 

“Full and frank” financial disclosure is usually needed when entering into a prenup, but it is not always necessary for a party to have full knowledge of all of the other party’s assets and income if they understand the implications of the nuptial agreement. 

Changes in financial circumstances 

You may wish to challenge a prenup if certain assets no longer exist or your income has changed. In general terms, the longer the marriage, the higher the likelihood that it may not be considered fair to hold the parties to the prenup due to unforeseen changes in financial circumstances. 

Insufficient marital assets to achieve a fair split 

Another reason to contest a prenup is if your marital assets are not sufficient to cover your financial needs and those of your children. Fairness usually requires that reasonable provision is made for each party’s housing and other financial needs. The court will normally take into account the available resources, the parties’ ages, earning capacity and the standard of living enjoyed during the marriage. 

What happens if you don’t sign a prenup and get divorced? 

If you do not sign a prenup and get divorced, it is much more likely that any assets that may otherwise have been ‘ring-fenced’ and protected from being included in a divorce financial settlement will be added to the ‘pot’. In other words, you will have less control over what happens to your pre-marital assets in the event of divorce. For example, if one party owned a property, vehicle, investment, or other asset before they got married without a prenup, it is almost certain that it will included in the list of assets to be split if the court is asked to make a decision on a financial settlement. While prenups are not legally binding, you have a much higher chance of being able to protect your assets in the event of divorce.