What is a prenuptial agreement?

A prenuptial agreement, (or prenup) is a written record or contract, agreed between a couple prior to marriage. The key purpose of a prenup is to provide clarity regarding ownership of assets and to determine how those assets should be divided in the event that the marriage irretrievably breaks down.

Prenups are often associated with the rich and famous. But it is not the case that they are only relevant to the wealthy. They can offer a practical and sensible solution to many people particularly those marrying later in life or entering a second marriage.

For example, one party may own a property and wish to ensure it is left to their children. Maybe one, or both, have accrued a sizeable pension prior to the relationship or stand to inherit a large sum in the future.

A prenuptial agreement, where it is properly executed, can be very effective in preventing your partner from automatically receiving a share of your assets should there be a divorce. They can also help to minimise the possibility of disputes and protracted litigation later down the line.

 

What is a prenup in simple terms?

When a marriage breaks down, the assets and belongings of both partners can be shared between them. This includes assets and property bought or acquired before the marriage. A prenuptial agreement – or prenup – sets out to protect any assets you own from being divided in the case of divorce.

 

What is the purpose of a prenup?

Prenups are most commonly used to determine the agreement with regards to the family home or other property owned by either party, savings, investments and inheritance. But they can also include business assets, premium bonds, stocks and shares. They can even determine what should happen with regards to any family pets.

Prenups can also be helpful where your partner has outstanding debts. This is because a clause can be written into the agreement protecting you from being liable for their debts.

 

Is my prenup legally binding?

Whilst prenups are not strictly enforceable in England and Wales at present, the Courts generally give such agreements significant weight. And they will largely seek to uphold them providing the agreement is considered fair in all the circumstances of the case.

Certain precautionary steps must be taken to ensure the agreement is upheld. These include:

  • ensuring the agreement is drafted correctly;
  • that each party has provided full and frank financial disclosure to their intended, and;
  • both parties have entered the agreement voluntarily after seeking independent legal advice

When a couple has taken the measures outlined above, ensuring that is fair and reasonable in all circumstances, and sign it at least 3-4 weeks before the wedding date, then it is more likely to be upheld.

 

When does a prenup need signing?

At least 3 to 4 weeks before the wedding. A court is less likely to give weight to a prenup agreement if it is signed too close to the wedding.

It is possible to create a post-nuptial agreement after the marriage which can also cover how a couple will split their assets in the event of a divorce or separation.

 

Why would the Courts ignore a prenup?

The Courts would be unlikely to uphold a prenup in the following circumstances:

  • where it was not written by a family lawyer;
  • there was no financial disclosure exchanged between the parties;
  • the parties did not seek legal advice;
  • they did seek legal advice and were advised not to sign;
  • there is any evidence of duress or pressure;
  • it was signed less than a month before the wedding, or;
  • it does not take into account any likely changes in the future i.e. ensuring the needs of any future children are met.

Prenups are often considered unromantic. And whilst no one enters a marriage planning to get divorced, the sad reality is that many marriages do fail.

If you have assets or children from a previous relationship it is sensible to consider a prenup. Where there is no prenup in place all the assets brought to the marriage can be considered for division.

 

We can help

If you are considering a prenup, or have been asked to sign one, please contact the family team at Ringrose Law for advice and assistance.

Call 0333 3580 393 or email wecanhelp@ringroselaw.co.uk

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