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What Is a Prenup and Do I Need One Before Marriage?

Explore the legal status of prenuptial agreements in the UK by reading this guide by our family lawyer, Georgina Hitchens. Are prenups just for wealthy people or are they a vital 'insurance policy'?

Table Of Contents

    What is a Prenuptial Agreement?

    In the UK, a prenuptial agreement, colloquially known as a prenup, is a contract entered into by a couple before they marry, which outlines the division of assets and financial responsibilities should the marriage dissolve.

    Prenups aim to protect individual wealth and provide security against financial loss due to divorce.

    While English law does not automatically enforce prenups, the legal system has evolved to acknowledge their importance.

    For a prenup to be considered during divorce proceedings, it must be fair, entered into voluntarily by both parties, and full financial disclosure must have been made.

    Couples are also advised to review the agreement throughout their marriage, especially when circumstances change, to ensure its continued relevance and fairness.

    When is signing a prenup a good idea?

    Whether couples should get a prenup is entirely up to them, however, here are six specific scenarios when getting a prenup drawn up could be beneficial:

    1. There is a disparity in wealth between the parties – It’s common for one party to want a prenuptial agreement if they enter the marriage with considerably more wealth. Without a prenup, they would stand to lose more than the other spouse in the event of a divorce and a division of assets.
    2. There is a future inheritance for one party – Safeguarding a future inheritance is one of the most common reasons for wanting a prenup if one spouse is expecting to receive a future inheritance.
    3. One party has a business to protect – If one partner owns a business before marriage, a prenup can ensure the business is considered separate property and not subject to division upon divorce. This can prevent the business from being disrupted or having to be sold to satisfy a financial settlement.
    4. Pass assets to children from prior marriages – The agreement you reach can dictate the rights of children from a previous marriage regarding property or assets should the marriage break down. The most common clause in this respect is for property owned before marriage.
    5. Prevent debts from becoming jointly owned – If your partner brings debt with them into the marriage, you can include a debt clause in the contract. The agreement doesn’t just protect you against existing debt, it can also go some way to protecting against debt liability should either spouse build up debts during the marriage.
    6. Your partner has debts: If one partner has substantial debt before marriage, a prenup can protect the other partner from being responsible for this debt in the event of a divorce.

    How to get a prenuptial agreement

    To obtain a prenuptial agreement in the UK, you should follow these steps:

    1. Early Consideration: Begin the process well before your wedding date. It is recommended that a prenup be signed at least 21-28 days before the marriage to avoid any suggestion of duress, which could affect its enforceability.
    2. Full Financial Disclosure: Both parties must provide a complete and honest account of their financial situation. This includes disclosing all assets, debts, and income.
    3. Independent Legal Advice: Each party should seek independent legal advice. This ensures that both individuals fully understand the agreement and its implications. The advice also helps to demonstrate that both parties entered into the agreement voluntarily.
    4. Draft the Agreement: A solicitor can help draft the prenup, ensuring that it is tailored to your specific circumstances and it includes all necessary provisions. The agreement should be fair and consider any future changes in circumstances.
    5. Review and Negotiation: Both parties should review the draft and if necessary, negotiate any terms. This might involve several rounds of discussion and revision to ensure the agreement is mutually acceptable.
    6. Sign the Agreement: Once both parties are satisfied with the terms, the prenup should be signed. It is also advisable to have witnesses who are over the age of 18 and independent of the parties involved.

    It’s also a good idea to review and possibly update the prenup periodically, especially after significant life events like the birth of children or major changes in finances.

    Can I make my prenup legally binding?

    Prenuptial agreements are not automatically legally binding in the UK, however, since the 2010 case of Granatino-v-Radmacher, courts in the UK are more likely to uphold them if challenged in court.

    In 2014, the Law Commission recommended introducing “qualifying nuptial agreements” in the UK. These would be enforceable contracts, allowing couples to make binding arrangements for the financial aspects of their marriage.

    To make a water-tight prenup that will stand up in court in the UK, it should be:

    • Fair and made with the full disclosure of assets by both parties.
    • Entered into voluntarily, without coercion or duress.
    • Signed at least 28 days before the wedding.
    • Reviewed and understood by both parties, ideally with independent legal advice for each party.

    While these steps can strengthen a prenup, it’s important to note that the courts in the UK still have the final say on whether they will uphold the agreement, taking into account the circumstances at the time of the divorce.

    How much does a prenup cost?

    Costs for preparing a prenup can range from £1,000 to £5,000 plus VAT when instructing local family law solicitors.

    Some firms such as Divorce-Online offer fixed fee packages starting from £849 including VAT.

    The total cost of preparing a prenup will depend on the complexity of the agreement and the legal professionals involved.

    What can you include in a Prenup?

    A prenuptial agreement should cover financial matters only, and can include the following:

    • Debts – This can include credit card debt, student loans, and other types of debt that either spouse may have. The prenup should outline who will be responsible for paying off these debts after separation.
    • Property – Property clauses are very common in Prenups. Whether that is establishing what is to happen to the marital home or if one spouse wishes to keep a property they own separately.
    • Maintenance – Addressing spousal and children support including whether or not it will be settled and the amount of aid given is worth including in a prenup.
    • Pensions – What is to happen to any pension pots? Define within your agreement what happens to held pension pots upon separation.
    • Inheritance – If you or your spouse are due to inherit money, a clause can be inserted to ensure this stays with the desired party. Inheritance can also be left to children.
    • Personal Property – Art, jewelry, etc. Personal property or belongings can be kept with the owner and not shared with their husband or wife.
    • Bank accounts – Prenuptial agreements can address joint bank accounts and how these will be handled in case of separation. Parties can also use a nuptial agreement to protect their income or savings.
    • Business interests – A prenup can include provisions for the division of business assets and restrictions on the sale or transfer of those assets.

    What cannot be included in a Prenup?

    If you cover anything outside of financial matters in your prenup, a Judge may decide not to consider it.

    This means that your prenuptial agreement cannot include:

    • Decisions around child support or child custody
    • Lifestyle matters
    • Outlining domestic duties
    • Anything that prejudices the needs of a child of the family
    • Different financial outcomes based on the reason for divorce, e.g. adultery

    Frequently Asked Questions…

    What if my partner and I come from different countries?

    If the couple comes from different countries or plans to live abroad, the prenup can include a choice of jurisdiction clause, stating which country’s laws will govern the agreement.

    It’s important to consider the enforceability of the prenup in any jurisdiction where the couple might live or have assets.

    What happens if we don’t have a prenup and we divorce?

    If a couple divorces without a prenup in place, their assets will be divided according to the laws of England and Wales, which aim to distribute marital assets on a fair and equitable basis.

    The court will consider various factors, such as the length of the marriage, the needs of each spouse, the needs of any children, and the contributions made by each party to the marriage.

    Without a prenup, the court has wide discretion to decide what is fair, and this can lead to more unpredictable outcomes.

    Can a prenup protect future assets or inheritance?

    People often ask whether a prenup can protect assets they don’t yet have, such as future earnings or inheritance.

    A prenup can include provisions for future assets, but the terms must be clear, and it’s important to consider how these clauses might be viewed by a court if the agreement is challenged.

    How can I make sure my prenup is enforceable?

    To increase the likelihood that a prenup will be enforceable, it should be entered into well before the wedding (ideally at least 28 days prior), both parties should have independent legal advice, there should be full financial disclosure, and the agreement should be fair and take into account any future changes in circumstances, such as the birth of children.

    Do both parties need their own solicitor?

    Yes, for a prenup to have the best chance of being considered enforceable, each party should have their own independent legal advice.

    This ensures that both individuals fully understand the agreement and that it was entered into without duress or undue influence.

    Final Thoughts

    Think of a prenup as an insurance policy. You buy house, car, health, and holiday insurance. Why? Not because you want or think things will go wrong, but to protect yourself should the worst happen.

    Since the groundbreaking 2010 case, UK courts have been more inclined to uphold prenups that meet the legal requirements.

    Ultimately, prenups allow you personal autonomy over your money and assets. Failing this, it could be left up to a Judge to decide who gets what.

    More couples are getting prenups before marriage than ever before, and with Divorce-Online, it’s easier and more affordable than you thought.

    Online Prenuptial Agreement Service – £849

    This service is ideal for couples who want to obtain a prenuptial agreement before marriage without spending thousands of pounds on lawyers’ fees. The agreement is drafted by qualified solicitors to your exact requirements. 

    Author: Georgina Hitchins

    This post was written by Georgina Hitchins. Georgina has recently been admitted as a solicitor following a long period of study while working as a paralegal with the firm. She has devoted the last few years to becoming an expert in advising on, and drafting complex pre nuptial agreements.

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