A prenuptial agreement (sometimes called a ‘prenup’) is a contract entered into by yourself and your partner prior to getting married. It is intended to outline ownership of your respective assets in the unfortunate event the marriage should fail and end in divorce. It is effectively a ‘who gets what’ agreement but, like all things relating to marriage, divorce and separation, there’s more to it than that.
This guide will help outline everything you need to know about prenuptial agreements in the UK.
Why sign a prenuptial agreement?
There is a common misconception that prenuptial agreements are just for the rich and famous: businesspeople or celebrities who want to protect their fortunes. Prenups commonly appear in the news when famous couples divorce.
Prenuptial agreements aren’t just designed for the very wealthy.
The most common motivation for a prenuptial agreement is when one spouse has significantly more wealth or assets prior to the marriage. This means they stand to lose a lot more than the other in an equal split divorce settlement. One spouse may wish to protect savings or other assets which have been built up for years, or even decades, before the marriage.
Another popular reason for a prenup is when one or both of a couple do not have notable existing wealth but are expecting significant future earnings through career progression or financial investment. A prenuptial agreement can be used to ringfence these future earnings and ensure they remain yours in the event of a divorce.
It is becoming more common for people of retirement age to remarry, for a second or even third time, who wish to protect their assets. You may have a significant nest-egg saved that you are planning to leave for your children as inheritance. A prenuptial agreement can protect these savings from being divided in a divorce.
Should you get a prenup even if you don’t have a lot of money?
Not everyone has significant wealth or assets that they would want to protect, but this doesn’t necessarily mean a prenuptial agreement can’t be worthwhile. Divorce can be unpredictable at the best of times, with acrimonious litigation always a risk. Having a prenuptial agreement can mean less is left to chance.
A judge will still have to approve any financial arrangements and check the financial requirements of each spouse are met.
In the strict sense of the law, prenuptial agreements are not enforceable in UK courts. Despite this, judges in the UK generally give prenuptial agreements significant weight in proceedings and will largely seek to uphold them providing there are no issues with it, and it was drawn up and signed with the correct considerations and precautions.
It is impossible to fully predict how a judge may rule on a financial settlement, so having a prenuptial agreement is a great way to avoid uncertainty.
The best way to ensure your prenuptial agreement is binding and seen as valid by the court is to make sure it is written up correctly and, above all, fairly. Each provision in the agreement must be entirely fair and must not favour one party over the other.
This also includes the language used – the wording must not display or suggest any kind of bias. This is likely to be picked up on by a solicitor or judge, who may see this as grounds for the prenuptial agreement to be invalidated.
To ensure your prenuptial agreement is valid, you must ensure the following conditions are met.
- Each party must offer full disclosure of assets, liabilities and debts in the agreement.
- The agreement must be voluntary
- Waivers of retirement can’t be made in a prenuptial agreement
- Unless both parties sign a conflict waiver, one solicitor cannot handle both parties.
- The requisite time frame for review must be met
There are a number of different issues to consider when drawing up a prenuptial agreement. These include, but are not limited to, the following:
- The family home: A prenuptial agreement should make provisions for how the family home will be divided in the event of a divorce.
- Money: This covers any money held by one or both parties, in joint accounts or separate, including savings and investments.
- Debts: If one spouse builds up debts, a prenuptial agreement can be used to limit the debt liability of the other spouse in the event of a divorce.
- Children: A prenuptial agreement can also include children from a prior marriage, and whether they have a right to any property or assets in the event of a divorce.
- Property: This covers property that either spouse brought into the relationship and was therefore owned beforehand.
- Inheritance/Trust: This covers property that is given to one of the parties or inherited during the marriage, as well as any assets gained from a trust.
Prenuptial agreements must be signed before the marriage takes place. If a couple gets married and decides they want protection similar to that offered by a prenuptial agreement, they can sign a ‘postnuptial agreement’ instead. This is essentially the same in legal terms but can happen later on.
Yes, in order for a prenuptial agreement to be considered valid and binding, both parties involved must seek independent legal advice on the document to ensure it is fair and lawful. If you require any assistance or advice on a prenuptial agreement, Acclaimed Family Law are happy to offer a free 30 minute consultation.
You will not be able to save cost by using the same solicitor – it is important that each of you receives independent legal advice.
Whether your prenuptial agreement needs reviewing or amending depends on whether the circumstances of your marriage change. Ultimately your prenup must remain reasonable and fair whatever happens. Changes in circumstance which may warrant a prenup review include the birth of a new child or a significant pay rise or windfall for one individual.
If you are in any doubt about whether your prenuptial agreement should be reviewed, we strongly recommend asking a solicitor for advice.
Prenuptial agreements are not automatically enforced as soon as a break up happens, but they will still have significant influence over the court’s decisions. The prenup will need to be reviewed to ensure it has all required details and is fair and reasonable, that no partner was under any pressure or duress in agreeing to it, and that each of you has received independent legal advice on the agreement.
A prenuptial agreement can be a complicated issue, requiring a lot of in-depth discussion on issues that there may be disagreements with. Mediation is an excellent way to get started with your prenuptial agreement – this is an option many don’t realise is available to them.
The broaching of the subject of a prenup can cause unease in a relationship, particularly if one party wants one and the other does not. Using a mediator can help prevent these discussions from becoming ugly in the event of disagreements.
Remember, a mediator will not make rulings or decisions, but will instead help you decide for yourself whilst ensuring a level playing field. This is particularly important because a court is likely to invalidate a prenuptial agreement they see as unfair.
Getting married is a wonderful and positive occasion – arranging a prenuptial agreement should not dampen the mood. A mediator will be able to help ensure it doesn’t.
Yes, the signing of a prenuptial agreement must be witnessed by two individuals, one for each party. These cannot be family members, they must be independent and must over the age of 18. They will be required to sign the prenuptial agreement and include their address and job details.
There is a preconception that a prenuptial agreement sets a marriage off on the wrong foot, and that they actually increase the likelihood of divorce later on. This is not actually true; a recent YouGov poll found that, for the majority of people, having knowledge of what would happen if a marriage were to end actually makes no difference to the chances of it happening. Only 18% of those surveyed said they felt it increased the chances of divorce.
If a prenuptial agreement has been signed, you might be concerned that there is no way to dispute it. This is not the case. If circumstances have changed and you believe the prenuptial agreement you signed is no longer valid, this can be challenged.
Courts take prenuptial agreements very seriously; however, they will not hesitate to invalidate it if they believe it is unreasonable or unfair to one of the parties.
The cost of a prenuptial agreement varies greatly depending on its complexity. In cases where the asset structure is complicated, or if there are international factors involved, these costs can be significantly more.
Is it worth paying for a prenuptial agreement? In a word, we believe it is. Considering the average wedding in the UK is now costing upwards of £30,000, the cost of a prenup is relatively low considering the long term protection and peace of mind it offers.
A prenuptial agreement is a contract; therefore, the length of the agreement can be included in its terms. Some prenuptial agreements can include clauses which state a future date after which it will no longer be valid - for instance, a couple may agree that the prenuptial agreement is only in force for the first 10 years of marriage.
According to the Office of National Statistics, the cumulative percentages of marriages that end in divorce increase more rapidly in the first 10 years of marriage than the 10 years after that.
It is important to note that, if a prenuptial agreement does not specifically include how long it is to be valid for, this means it will remain in effect permanently. It will be indefinite, unless you and your spouse choose to revoke or modify it at a later date.
Last updated 5th April 2019
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