Can Children Lose Out After a Prenuptial Agreement Has Been Signed?

Prenuptial agreements are not automatically recognised in family law, although the government has made noises to say that legislation may well be brought forward to make them binding. It is clearly not a priority however, and it is likely to be many years before that happens. In the meantime, couples and family solicitors alike are reliant upon the discretion of a judge to decide whether or not he will take such an agreement into account.

Many parties enter into written or verbal agreements before and during a marriage or separation, without necessarily incorporating those into a court order. This frequently gives rise to disputes later, with one half of the couple claiming they were unfairly pressured to sign up, or that they did not have legal advice, thus rendering their consent meaningless. This is often the case in spousal and/or child support and child contact issues covered in an informal document drawn up between the parties following a separation. Later on, this may or may not be upheld by a judge, even where both people have had legal advice. When deciding not to enter into a prenuptial agreement, we should be mindful of how surviving children may be disadvantaged.

One example of how children can lose out is when they are brought to a second marriage: a man may come to a marriage with £2 million pounds and want his children from a previous marriage to be beneficiaries of that money. In the event of his death, his second wife, if no agreement is in place, is likely to lay claim to a reasonable share of the Estate thereby damaging the fortunes of the children originally intended to benefit from the Estate. This is regardless of what a Will might state.

It is a well-known fact that children from ‘second families’, i.e. those of later marriages, stand to gain much more than their elder half-siblings. At the date of their father’s death, they will have had the benefit of a better standard of living, and for their mother to be better provided for, than those children of the divorced first wife, scraping by on a low maintenance order, or one-time capital settlement. Those second families will also be able to accrue any death in service benefits and life insurance policies.

Before signing a prenuptial agreement, it is vital to have a conversation around what financial provision will be made for any children now living or planned upon, and if such a document is to be put together, that both parties are clear on the matter on what assets any children are to receive. It is an uncomfortable conversation to be having at the time of an impending marriage, but ensures that children are not casualties any more than they are already when parents divorce. It is important to do this, as, if upheld, it will remove those assets from any future matrimonial pot and safeguard their inheritance.

It is accepted now that for a pre marriage agreement to have any chance of being upheld, that separate legal representation is sought for both parties and the agreement made well in advance of the wedding. So make sure that you get this part right.

If this article has posed some questions for your particular circumstances please do contact us on 0845 658 6639 or by email at

Our divorce guide may also help you, it’s free, and you can get your copy at the bottom of the page here

© Punam Denley, November 2012

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