In case you’re not familiar with one, a prenuptial agreement (or ‘prenup’) is a legal document drawn up by solicitors before a marriage. It sets out what will happen to personal and shared assets if a couple should separate. It isn’t mandatory and isn’t legally binding, although UK divorce courts do give consideration and weight to prenups if called upon to rule on financial agreements.

 

A recent trend has emerged in relation to prenup agreements, to do with something called an ‘infidelity penalty’. But what actually is it, and is it legally binding in the UK? Let’s find out a little more.

 

What is an infidelity penalty?

 

Also known as an infidelity clause, this is where a couple may choose to insert particular conditions in their prenuptial agreement relating to adultery.

 

In very simple terms, it asserts that if one partner or other is unfaithful during the marriage, they may pay a penalty when it comes to the divorce settlement. So, they get a smaller portion of shared assets than they otherwise would have received.

 

An increasing number of couples are reportedly inserting such a clause into their prenuptial agreements. But importantly, this is only really happening in the United States – where the trend is said to have come from.

 

US divorce law is quite different to the UK.  In some US states, it may be possible to get a better divorce settlement (or ensure your ex gets less) if you can prove that your partner committed adultery.

 

Are infidelity clauses legally binding in the UK?

 

Although infidelity clauses may be big news in the US, they simply aren’t an option for UK couples drawing up a prenup. This is primarily because UK divorce law has recently undergone an overhaul.

 

As of April 2022, ‘no fault’ divorce was introduced in the UK. This eliminated the need to provide a reason for the breakup of the marriage, such as unreasonable behaviour, adultery, desertion or separation. It also meant the end of assigning blame for the separation, with one person petitioning the other for divorce. If they want to and the separation is reasonably amicable, couples can now apply jointly for divorce.

 

Even before the law changed, it still may not have been possible to put an infidelity clause in your prenup and have a UK divorce court take it seriously. Citing adultery as a reason for divorce was certainly possible. However, divorce courts weren’t in the habit of punishing unfaithful partners by awarding smaller settlements. There was no financial penalty for cheating, even if infidelity did lead or contribute to the breakdown of the marriage.

 

Need professional, trustworthy advice on divorce? We’re here to help you navigate the process as smoothly and painlessly as possible. Get in touch with Liverpool divorce lawyers Tracey Miller Family Law on 0151 515 3036 or 07795 060 211 to arrange your free initial consultation.