A Guide to Understanding Prenuptial Agreements (Prenups)

As the nature of marriages become more complex (sometimes involving children from past relationships or assets from a deceased ex-partner), couples are finding practical ways of addressing potential financial complications with the implementation of Prenuptial Agreements.

Commonly referred to as “prenups,” these contracts allow parties to decide how assets will be divided if there is a divorce. And in so doing, parties can save money and time which would otherwise be spent on protracted court proceedings.


In this article, we will address key considerations to help you determine if a prenup is right for you.


We will also help you attain a better understanding of the prenuptial process in England and Wales.

What is a Prenup (Prenuptial Agreement)?

A Prenuptial Agreement is a written contract between two people who are about to marry.

It is typically applied by parties who possess current or future wealth they wish to protect.


The document may set out the conditions about the possession of assets, management of future earnings, control of property, and/or potential distribution of assets if the marriage ends.


These agreements are fairly standard if either or both parties have substantial assets, children from a prior marriage, potential inheritances, high incomes, or have lost a considerable amount of assets to a previous spouse.



3 Things you Ought to Know about UK Prenuptial Agreements

Why Get a Prenuptial Agreement?

According to the Office for National Statistics, the divorce rate in the United Kingdom is 42%.

Among those who choose to end their marriage, studies reveal that 1 in 5 couples directly blame financial pressures on their separation.

Money can be a hugely emotive topic in a relationship, especially if you have different attitudes towards spending and saving. And during the divorce process, circumstances may become more convoluted.

A prenuptial agreement provides an explicit agreement that can lead to the peace of mind of both parties.

You may want to consider getting a prenuptial agreement if:

1. You, and/or your partner, have children from a previous relationship and want to ensure certain assets are retained for them - a means of protecting their inheritance.

2. You have been married before and would like to avoid complications affecting a prior settlement with a previous partner.

3. Your partner has or may accumulate debt (including student loans) - a ‘debt clause’ in your prenuptial agreement can protect you from future liability.

4. You and/or your partner want to protect a significant amount of savings/assets accumulated before marriage.

 

5. You possess assets that would be difficult to split.

6. You and/or your partner own a business in which control will be at risk in the case of a separation.

7. You are expecting an inheritance or significant future earnings.

8. You feel you have been unfairly treated during the litigation process of a previous divorce and would like to ascertain more control in case of another separation.

 

9. You are looking to avoid an extensive and expensive legal battle in the case of a divorce.

Are Prenuptial Agreement Enforceable in the United Kingdom?

Prenuptial Agreements are not formally binding in England and Wales.

However, the UK supreme court decision in the 2010 case of Radmacher v Granatino set a precedent which established that Family Courts in England and Wales regard prenuptial agreements as persuasive when determining financial claim on assets following a divorce.

 

Be aware, signing a prenup doesn’t always mean a judge will uphold the contract. Something as frivolous as including unreasonable clauses (for example, those which unfairly impact children) may lead a judge to waive the prenuptial agreement.

The Prenuptial Agreement Checklist

We have outlined essential details you ought to address to ensure the validity of your agreement as set out below:

 


1. Neither party may be coerced into entering the prenuptial agreement.

 

2. Both parties must understand the nature of the prenuptial agreement. Therefore, independent legal advice should be obtained by both parties.

 

3. Both parties must be fully aware of all property and assets/liabilities involved in the prenuptial agreement. You and your partner should, therefore, provide financial disclosure to be included in the prenuptial agreement.

4. If there are children involved, the prenuptial agreement must not be unjust to them.

5. The agreement ought to be signed at least 21 days before the marriage.

6. A qualified solicitor should draft the prenuptial agreement.



Commonly Asked Questions Regarding Prenuptial Agreements

 

How Long Does a Prenup Last?

 

If a deadline is not specified in the agreement, prenuptial agreements may last for the lifetime of the relationship in question.

However, couples may decide on agreed times at which the contract ceases to be valid.

It is worth noting, since the Court in England and Wales make divorce related decisions based on what is fair and reasonable, couples are advised to amend the prenuptial agreement whenever there is a significant change in the relationship (For example, the birth of a child, moving to a new location, the introduction of unforeseen assets /liabilities and more).

What Happens to Property and Assets, If There Is a Divorce Without a Prenuptial Agreement?

 

If an amicable agreement can be reached, parties may agree on how to divide assets and property after a divorce without being embroiled in court proceedings. In such instances, a solicitor ought to be involved to ensure the divorce agreement is legally binding and a Consent Order drafted.

If an amicable agreement cannot be reached, the Court will view both partners as equal. A judge will decide the fairest way to split assets in an attempt to suit the needs of both parties.

 

Prenuptial Agreements - The Court will consider the following factors:

1. Financial resources and assets of both parties including income and earning capacity.

2. Needs of any children and the parties as well as obligations of both parties (such as debts and payments to third parties)

 

3. Age of both parties

4. Length of the marriage

4. Standard of living during the marriage

5. Contributions made by both parties during the marriage (for example, economic provider or homemaker)

6. Conduct of a party to the marriage (this is a high threshold to overcome and only relevant in a small minority of cases)

Can You Get a Prenup After Marriage?

 

Yes. After marriage, partners may choose to sign a postnuptial Agreement (postnup) which functions in the same way as a prenuptial agreement.

 

Are Prenups Applicable for Civil Partnerships?

 

Yes. Prenups are applicable for civil partnerships.

The legal equivalent of a prenuptial agreement in the case of a civil partnership is called a pre-civil partnership agreement.

 
 
 

At MHHP Law, our experienced and expert solicitors are prepared to offer advice on prenuptial agreements.

We will walk you through the prenup (if you are soon to be married) or postnup (if you are already married).

 

Get in touch today to speak with one of our legal professionals who will explain the details necessary to protect you in case of a divorce.

For your peace of mind in your marriage or civil partnership, contact our legal team on 020 3667 4787, or via email: tayo.taylor@mhhplaw.com or jon.gilbert@mhhplaw.com