Prenuptial agreements set out what you and your future husband/wife or civil partner agree should happen to your finances if your marriage/civil partnership breaks down. Having a prenup can provide clarity for the future and assist to reduce conflict if your relationship does end.
Prenuptial agreements can help to protect assets which have been acquired before the marriage, inheritance or a family business. It can also make provision for what will happen to your family home, whether either party would be required to pay the other maintenance and other issues which can cause conflict during a separation.
If you and your partner are considering entering into a prenuptial agreement it is essential that:
- Each party has their own independent legal advice.
- There is complete disclosure of each party’s finances.
- It is completed in good time before the wedding (at least 2 months before if possible).
- There has been no pressure to enter into the agreement.
Our Family Law solicitors are highly experienced with prenuptial agreements, regularly advising people from all walks of life on negotiating, drafting and reviewing prenups. We can provide clear, practical guidance for even the most complex circumstances, helping you to get an agreement in place that protects your interests.
Do I need a pre-nup?
Prenuptial agreements are particularly relevant where:
- One or both parties have been married before.
- There are inherited assets that you wish to protect from a divorce settlement.
- You are bringing more assets into the marriage than your partner.
- There is a business or business assets that you wish to protect.
- Pensions built up before the marriage need to be protected.
- There are overseas assets or you are a non UK resident.
Are prenuptial agreements legally binding?
Prenuptial agreements are not strictly binding on the court in the event of a later divorce, but it is likely that a pre-nuptial will be respected by the court unless the effect of the agreement would be unfair.
It is not possible in this country to have a fully binding agreement before marriage or civil partnership about what will happen on divorce or dissolution. In other countries, pre-nuptials are often binding.
In order to do the best job of ensuring that the court will consider the agreement to be fair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full and take independent legal advice on the agreement and its effects. You can reach an agreement using mediation or collaborative law, or more traditionally by using solicitors to negotiate on your behalf. Your family lawyer will help you find the process most suitable for you.
It is good practice to get the agreement finalised in good time before the wedding or civil partnership ceremony so that neither of you feel under pressure to agree to anything.
Agreements are more likely to be considered to be fair if they are recent or if your circumstances have not changed significantly since the agreement was signed. It is also important for both people to know and understand the implications of the agreement, both legally and financially, without any undue pressure being applied.
It is possible that the court might uphold part of an agreement while considering a different part to be unfair.
What sorts of things does a prenuptial cover?
A prenuptial is a bespoke document drawn up for the two of you for your particular circumstances, so it can cover almost anything you want it to.
There are certain things that couples usually think about when deciding how they would want to work things out if they separate:
- What would happen to property that you brought into the marriage?
- What would happen to the family home?
- What would happen to any property given to you or inherited during the marriage or any income or assets derived from trusts?
- What would happen to money held in joint accounts and any property purchased jointly?
- What would happen to any money that was saved during the marriage?
- What would happen to your pensions?
- How would you deal with any debts?
- Would either of you pay or receive any maintenance and, if so, for how long?
- What kinds of events might require the agreement to be reviewed?
What happens to a pre-nup if we have children?
A prenup cannot prejudice the interests of any children in your family.
It is usual to build in provision for a review of the agreement if and when you have children, so that the children’s needs can be considered and assessed at that time, with possible changes made to make sure that children are provided for.
If you need to replace your prenuptial agreements with a new agreement, this is sometimes referred to as a post-nuptial agreement or ‘post-nup’.
In the event of a divorce, if the court is asked to intervene in financial arrangements its first consideration is always the children involved. If the court considers that any agreement may adversely affect children, it is likely to consider that it is not fair to uphold the agreement in the circumstances. It is not possible to contract out of giving financial support to or for a child.
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