Can a prenuptial agreement be modified or renegotiated?

The law surrounding prenuptial agreements can be complex, and although such contracts are not binding on the court, a party cannot explicitly remove its jurisdiction, either. Despite this, where a prenuptial agreement was entered into, the court must give appropriate weight to its contents. But what if circumstances have changed since it was created? Can a prenuptial agreement be modified? Can it be renegotiated? This article provides answers.

If you have a prenuptal agreement and you require legal advice to understand your options, contact specialist family law solicitor Joanne Major. Joanne is the founder of her specialist family law firm and has spent her 25-year legal career specialising in family and matrimonial cases.

How long does a prenuptial agreement last?

Because a prenuptial agreement is a contract, its duration can be included in its terms. It is also possible to include clauses which set a specific date after which it will no longer be valid. For example, a couple could agree that the prenuptial agreement only remains in force for the first 10 years of the marriage.

If a prenuptial agreement does not specify an end date, it will remain in force permanently and indefinitely, unless both parties revoke or modify it at a later date.

What if I am no longer happy with my prenuptial agreement?

No one can predict at the outset of a marriage the curve balls life can throw. Sometimes a prenuptial agreement created many years ago may no longer be relevant or one you are content with. If you find yourself in this situation, it is useful to know that you have options.

Can I make changes to my prenuptial agreement?

It is important to regularly update and review a prenuptial agreement at least every five years. The more accurately it reflects the current situation, the better for any subsequent divorce proceedings.

It is extremely rare for prenuptial agreements to be renegotiated post separation and depends on what is being sought, how old the agreement is, and whether the circumstances have changed. This is why it is essential to keep a prenuptial agreement up to date. If you cannot agree with your spouse that the agreement should be renegotiated, then you will need to get the court involved.

What are the circumstances that a prenuptial agreement can be modified?

In the 2017 case of Radmacher, it was found that if the ‘prevailing circumstances’ of the parties had changed since the prenuptial agreement was entered into, then it would not be fair to hold the parties to that agreement.

Over the years, relationships and circumstances naturally evolve and change to such a degree, which was probably not envisioned at the time the agreement was created. Generally, then, the longer the marriage, the more this should be taken into account when determining whether the agreement is capable of modification or renegotiation.

Although the agreement may have been fair when it was entered into because of the passage of time and changes in circumstances, it may no longer be considered such. These changes can include, but are not limited to:

• Loss of employment
• Significant pay rise or windfall
• Change in financial circumstances
• Loss of value in a business or asset
• Bankruptcy
• Birth of children
• Changes to health or incapacity due to illness or disability
• Relocation to a foreign country
• Other notable changes to needs

Can I include a review/modification clause in the prenuptial agreement?

A prenuptial agreement can be reviewed or modified at any time without including such a clause during the marriage providing the parties are in agreement and all the legal formalities are met. Formalities include both parties obtaining independent legal advice, understanding the legal implications of the change, an absence of coercion, and full and frank financial disclosure with no evidence of fraud or hiding assets.

This doesn’t mean that you shouldn’t include a review/modification clause and having one does at least mean a date to look at your circumstances again is set that can address any changes. Review clauses can be particularly important for young couples who potentially have many life changes ahead of them. Regularly reviewing or modifying prenuptial agreements may avoid problematic issues arising on divorce, but doing so can also keep such arrangements fair as lives evolve over the years.

Does my prenuptial agreement need modifying if my spouse moves abroad?

Things can become complicated when one or both parties leaves the UK and permanently relocate abroad. This is because there are no guarantees that an international court will uphold the terms and conditions of a British prenuptial agreement. In addition, there is no ‘global’ prenup recognised internationally. If either of you are thinking about moving overseas, you should seek legal advice at the earliest opportunity. The same applies to foreign couples relocating to the UK, because agreements arranged abroad may not be enforceable or recognised in the UK.

Can my spouse challenge a prenuptial agreement if we break up?

Prenuptial agreements are not automatically enforced by the court, but they influence its decision about a financial settlement if you divorce. Particular areas of challenge include:

• The agreement not being made in a reasonable time before the marriage or civil partnership. This is generally considered to be at least 28 days. If it was entered into immediately before the wedding, the court will be concerned that pressure may have been applied by one party to agree to its terms.
• The absence of coercion, pressure, or duress from one party on the other
• Each party being given the opportunity to obtain independent legal advice on the terms
• Full and frank disclosure of both parties financial position
• The terms of the agreement being fair (although this concept is not defined by legislation)

Can I apply to the court to disregard my prenuptial agreement?

The only way this can be achieved is by agreement with the other party or by applying to the court for it to consider your finances as part of the divorce process. The court will look at whether the prenuptial agreement should be binding and consider the terms of the agreement as well as the circumstances when it was created. If upholding the agreement is deemed unfair because of unforeseen changes in family life since it was entered into, you may be able to challenge its enforceability. If the court finds that the agreement should be upheld, then it will make financial orders appropriate to the prenuptial agreement, the family’s finances, circumstances, and needs.