Prenuptial Agreement UK – Everything You Need To Know! 💑📃

Nov 20, 2020 | Christopher Dolton

While the idea of signing a prenuptial agreement before marriage may seem unromantic or even pessimistic, this is far from the truth. Even setting aside the high rate of divorce in the UK, prenuptial agreements are a sensible way of starting out a marriage with a shared sense of openness and honesty.

Taking the time to agree with your partner what should happen to assets in the event your marriage fails will reduce uncertainty and stress in your relationship and, should the worst happen, a prenuptial agreement can be an invaluable resource to fall back on in divorce negotiations.

At Elite Law Solicitors our family law team have extensive experience of advising and assisting clients with prenuptial agreements. If you require any advice or assistance please make a free enquiry by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or completing our Free Online Enquiry Form.

What is a Prenuptial Agreement?

A prenuptial agreement (often referred to as a prenup) is a contract entered into between two parties before they marry. It records the ownership of assets and details what will happen to these assets should the marriage break down and end in divorce. In the simplest of terms, a prenup dictates “who gets what”, but there is a lot more to consider before deciding on signing a prenuptial agreement and there are many misconceptions about them.

Prenups are often considered the preserve of very wealthy individuals, such as businesspeople and celebrities, who are looking to protect their assets from a less wealthy future spouse. This misconception may be a consequence of the fact that prenups will often appear in the news when famous people go through a public divorce. In actual fact anyone can get a prenup and there are a number of reasons why you might consider signing one before marrying.

Who should get a Prenuptial Agreement?

Once you are married, any assets you formally owned yourself may become matrimonial assets. If they are treated as matrimonial assets, they are thrown into a proverbial pot, where they may be shared between you and your partner. Should the marriage end in divorce, both partners will then have a claim on these assets. A prenuptial agreement allows for each partner to ring-fence certain assets to protect them from this eventuality – and these assets don’t have to have a high financial value or even be in your possession at the time of signing the prenup.

There are many reasons to consider getting a prenup. Some of the most popular motivations are:

1. There is an existing disparity in wealth between you and your partner. The most common reason for signing a prenuptial agreement is when one partner is bringing significantly more wealth or assets into the marriage than the other. The wealthier spouse would therefore stand to be disproportionately affected by a divorce in which assets were split equally. A prenuptial agreement allows them to safeguard these assets, which they could have been building up for years or decades prior to the marriage.

2. There is an expectation of future wealth for one party. A prenup can protect assets you do not have at the time of signing. If one party expects to earn significantly more than the other through their career, their investments, or inheritance they stand to gain when a family member passes away, then a prenuptial agreement can be put into place to ensure that these future assets aren’t immediately assumed to be the shared property of both partners.

3. There is a business to protect. Assets don’t just come in the form of money, investments, property and other financial forms – if one partner entering into a marriage is a business owner, then their business also counts as a significant asset that a marriage and subsequent divorce could affect. For the sake of both the owner of the business and to safeguard the future of any employees or other individuals dependent on the business, a prenuptial agreement that places the business outside of the pot of shared marriage assets is worth considering.

4. There is an inheritance to protect. A prenuptial agreement can safeguard a future inheritance that one partner may expect to receive, but a prenup can also protect an existing sum of money or assets intended to be passed on as inheritance to someone else. It is common for people to marry or remarry at an older age after already having had children, and in this case, they may want to protect a portion of their own wealth that they intend to use to provide for these children from a previous relationship. A prenuptial agreement can keep these assets separate from any that are divided equally during a divorce.

5. There is the possibility of international divorce law. If you are marrying someone from abroad, there are occasions in which the laws applicable in your partner’s home country may affect you – particularly when it comes to settling divorce proceedings. A prenuptial agreement can help you avoid falling foul of the laws related to the sharing of matrimonial assets in another legal jurisdiction.

The above is not an exhaustive list of reasons to consider signing a prenuptial agreement and just because one of these reasons applies to you or your future spouse that does not necessarily mean a prenuptial agreement will be right for you. If you are unsure about whether you need a prenup, you may find it useful to talk to an experienced family law solicitor who will be able to give you expert, impartial advice tailored to your situation.

What is included?

Prenuptial agreements can cover a lot of different issues. When drawing up an agreement, your solicitor will advise you on what is appropriate to include. This can include, but is not limited to, the following:

Property: A prenuptial agreement should cover property each spouse brings with them into the marriage, as well as what will happen to the family home in the event of divorce.

Money: Both money and investments held separately, and savings and other money kept in joint accounts should be accounted for in a prenuptial agreement.

Debts: A prenup should not just safeguard each partner’s existing assets, but also protect against debt liability should one spouse build up debts.

Children: A prenuptial agreement can also be used to dictate what rights children from a prior marriage have to any property or assets in the event the current marriage breaks down.

Inheritance: A prenup can be used both to ring-fence assets one partner intends to pass on as inheritance and to protect the expected future wealth either spouse may gain as a beneficiary of inheritance.

Is a Prenuptial Agreement legally binding?

It is very important to note that while prenuptial agreements are legal documents that will be considered by the Courts when prepared correctly the Court may, depending on the facts of a particular case, chose to do divide a  couple’s assets in a manner that differs from the prenup.

In deciding whether to uphold an agreement the Court will start from the position that where a couple have entered into a prenup aware of what they were doing and understanding the financial consequences, they should be held to the terms of their agreement unless the result of doing so would be to place one of them in a position of financial hardship. This means the Court will look at the prenup in the context of the circumstances in which it was made and the effect of holding the couple to the terms of the prenup at the point the relationship breaks down. There may well be a considerable gap between these two points in time.

At the time the prenuptial agreement is made the Court will want to ensure the following:

  • Each of the couple must understand the financial resources, income and liabilities involved. This requires each of them to disclose to the other what they own and what their assets are.
  • Neither of them must be placed under undue pressure to enter into the agreement. This requires that the agreement be prepared in good time before the marriage and that each person has time to consider it. Presenting a prenup to your partner on the eve of the wedding and telling him or her “sign here dear or the wedding is off” is understandably not an option.
  • Each of the couple should ideally take independent legal advice.

These are all matters which should be considered and dealt with in a carefully drafted prenup.

If the necessary requirements surrounding the making of the prenuptial agreement have been observed, the Court will then want to ensure that at the point the relationship breaks down and the prenup is being relied upon, the consequences of holding the couple to the agreement will not put either one of them, or more importantly a child, in a position of grave financial hardship.

Even if the Court decides that holding the parties to the prenup will cause grave hardship, whilst the terms of the prenup may not be strictly upheld, the Court will not disregard the terms of the prenup altogether. What was agreed will still be taken into account as one of the factors to be considered by the Court, but it will not be the only factor.

Prenuptial Agreement Pros and Cons

It should already be clear that deciding to sign a prenuptial agreement before marrying is something that requires careful consideration. The pros of doing so are the solid foundation that an agreement provides for a marriage: sharing the details of your assets with your spouse, and thinking sensibly about how these assets should be handled in the unfortunate case that your marriage breaks down, creates a sense of transparency and security that is likely to be beneficial to your relationship going forwards.

On the other hand, that sense of security may be illusory as there is no way to guarantee that years or decades into the future the Court will uphold the agreement you make with your spouse today.

This begs the question of whether a prenuptial agreement is worth spending time and money on at all. If you are undecided, though, it is worth remembering that the legal precedent is increasingly shifting in favour of upholding prenuptial agreements, provided they are prepared correctly and don’t disproportionately favour one party or run contrary to the Matrimonial Causes Act.

Do I need a Solicitor for a Prenuptial Agreement?

One key issue that can make the difference between a prenuptial agreement being upheld or disregarded by the Court is whether each party sought independent legal advice prior to signing. For this reason, it is important to involve a solicitor in the preparation of your prenuptial agreement, and for both parties to receive advice from separate solicitors that can be proven to be impartial.

The involvement of a solicitor will make it easier to prove other important factors the Court will use to determine the validity of a prenuptial agreement, such as whether both parties fully disclosed their assets, and whether either party was under any duress or deception at the time the prenup was signed.

Cost of Prenuptial Agreement

The cost of a prenuptial agreement can vary considerably depending on the complexity of the financial circumstances of the parties involved. One thing that is certain, though, is that the cost of a prenup is both a fraction of the cost of an average wedding, and a fraction of a fraction of what you could stand to lose if you enter into a marriage with significant assets and no agreement in place.

For a typical prenuptial agreement, solicitors’ fees will probably range between £1,500 and £3,000, with this figure increasing as the value of assets and the complexity of the case increases. Solicitors often point to a total asset value of £1 million as the limit for a fixed fee arrangement, beyond which a more bespoke service will be required, which will naturally incur larger fees.

Frequently Asked Questions

Q. Can I use a Prenuptial Agreement if forming a civil partnership?

A. Yes. Since civil partnerships came into force in 2005, there has been a steady rise in the number of pre-civil partnership agreements, also known as ‘pre-cips’. Even with the legalisation of marriage between same-sex partners in 2014, civil partnerships are still an appealing alternative to traditional marriage for many couples, regardless of sexual orientation. As such, solicitors are more than willing to help these couples prepare their own pre-cip agreements to help them safeguard their assets and begin their partnership with a sense of security and transparency.

Q. Can I get a Prenuptial Agreement after getting married?

A. A prenuptial agreement is, as the name suggests, something to be signed before marriage. But if you have left it too late and are already married, that does not necessarily mean you are out of luck.

In a landmark case in divorce law, at the conclusion of McLeod v McLeod (2008) the Court ruled that a post-nuptial agreement, signed after the marriage had taken place, could be upheld in the same way as a prenuptial agreement, provided it was prepared so that it met the same criteria for validity we have covered above.

Q. What happens to assets acquired after marriage/civil partnership?

A. Assets acquired after marriage, or marital assets can also be covered by a prenuptial agreement. When creating the initial agreement clauses can be included to define roughly how you and your partner agree to split marital assets should you divorce. Once you are married, you can also add specific marital property to the prenuptial agreement by amending it with the help of a solicitor.

Q. Does a Prenuptial Agreement require witnesses?

A. Yes, two witnesses should be present at the signing of your prenuptial agreement. These witnesses must be independent (not family members) and over the age of eighteen. They will also need to sign the agreement to record their witnessing and provide some basic details such as their address and occupation.

Q. If I get one does this make divorce more likely?

A. One of the biggest misconceptions regarding prenuptial agreements is that they are at best unromantic, and at worst that they indicate a lack of faith in the longevity of the marriage. This could not be further from the truth, but because prenuptial agreements are only really discussed when they become part of a divorce, the many thousands of couples living happily married lives with prenuptial agreements are rarely noticed.

Q. How long does a Prenuptial Agreement last?

A. Unless otherwise specified, a prenuptial agreement will typically last the lifespan of a couple’s marriage. In some cases couples may choose to build a “sunset clause” into the agreement that specifies an expiration date, but without a specific condition like this in place the agreement can be assumed to last indefinitely.

It is possible, and indeed advisable, to revise your prenuptial agreement to keep it up to date. A very old prenuptial agreement that does not account for circumstances, for example the birth of children or illness, that may have changed in the interim is more likely to lead to financial hardship and is less likely to be upheld by the Court.

Q. What is the difference between a Prenuptial Agreement and a Cohabitation Agreement?

A. A cohabitation agreement is an agreement between a couple who are living together but not married. By signing a legal document, a cohabiting couple can give themselves the same protections usually only afforded to couples who are married or in a civil partnership, ensuring that if their relationship breaks down there are already rules in place determining what will happen to their shared assets, property, children, and other important matters.

A prenuptial agreement records similar decisions but is specifically intended for couples who are getting married. A prenup is designed to provide an alternative to the default entitlements for married couples as set out in the Matrimonial Causes Act.

If you want to cohabit with a partner but have no intention of getting married, a cohabitation agreement would be right for you. If on the other hand, you are preparing to get married, then you should consider signing a prenuptial agreement in advance of the wedding.

prenuptial agreementHow Elite Law Solicitors can help

Christopher Dolton is a senior solicitor in our family law team and has extensive experience of advising and assisting clients with prenuptial agreements. He possesses the experience, legal expertise and practical know-how to guide you through the process and prepare a bespoke prenuptial agreement tailored to your specific circumstances.

Christopher regularly provides specialist legal advice on prenuptial agreements to clients all over the country. In addition to office meetings, he offers remote meetings via telephone and video conferencing software and can assist you wherever you are based.

Make a Free Enquiry

If you have any queries relating to any of the issues discussed in this article or would like any advice or assistance in relation to preparing a prenuptial agreement, please make a free enquiry by calling 0800 086 2929, emailing info@elitelawsolicitors.co.uk or completing our Free Online Enquiry Form.

The content of this article is for general information only. The information in this article is not legal or professional advice. If you require legal or professional advice you should obtain independent expert advice from qualified family law solicitors such as those within our firm.

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