A prenuptial agreement can help provide more clarity and certainty about how assets, funds and debts are dealt with after a couple divorces.
Traditionally considered to be the preserve of the rich and famous, prenuptial agreements are becoming increasingly common as couples look to exert more control over their finances should they separate.
Perhaps you own your own home, or have a substantial pension pot, or have children from a previous relationship that you want to benefit from your assets. In these cases, a prenuptial agreement could be a wise investment to help protect your interests and avoid an uncertain outcome from divorce.
In this guide, we explain what a prenuptial agreement is and how they can be used to protect your future in the event of relationship breakdown.
What is a prenuptial agreement?
A prenuptial agreement, or ‘prenup’, sets out in writing the rights of each spouse to any monies or assets they own or will own, including debts, income and inheritances, should their marriage fail. These assets could have been gained jointly or individually, or they may have been brought into the relationship upon marriage.
A prenuptial agreement seeks to either limit the amount that one of the couple could receive on divorce or state which assets would go to which individual, or both.
While not legally-binding in the UK, a pre-nuptial agreement is typically given notable consideration by the courts during divorce proceedings as indication of the couple’s intentions as to how assets and funds are dealt with in the event of relationship breakdown.
The equivalent for those entering into a civil partnership is called a pre-registration agreement. The key principles we discuss in this guide apply also to pre-registration agreements.
Why do couples use prenuptial agreements?
When a couple marries, their assets are generally treated as becoming ‘matrimonial assets’, so that upon divorce, they come under consideration to be divided under a financial settlement. Under UK law, there is no steadfast rule as to how these matrimonial assets will be divided.
Through a prenuptial agreement, couples can seek to achieve certainty of how their assets will be treated should the relationship come to an end.
Prenuptial agreements are traditionally considered to be used where there is an ‘imbalance’ in current or future wealth between the couple, for example, where one or both partners are individually wealthy, are likely to inherit significant amounts or assets, or are remarrying. However, they can offer protection and enhanced certainty in many other circumstances, such as:
- you want to ensure that you will retain ownership of your home or any other property you own, should the marriage fail
- you have children from a previous relationship and want to protect your assets to ensure that your children are provided for, should things go wrong with your new spouse
- you want to make sure that should the marriage fail, there’ll be no lengthy and expensive arguments about who gets what
- you are likely to inherit monies or assets in the future and want to be clear make sure that your partner is marrying you for you, and not the inheritance
- you want clarity about who is responsible for debt
- you own a business which you want to retain full control of should you divorce
While suggesting a prenup may lead to some uncomfortable discussions, this is likely to be outweighed by the enhanced certainty and clarity it provides about asset distribution should your relationship end in the future.
A further benefit of a prenuptial agreement is that the cost of drafting one is likely to be considerably less than that of protracted divorce proceedings dealing with financial matters.
Are prenuptial agreements legally binding in the UK?
At the current time, prenuptial agreements are not legally binding in the UK. This means they will not automatically be upheld in court.
However, where a prenuptial agreement does exist, it is likely to be examined by the court to decide whether or not it should be upheld.
The court will make their decision on whether to uphold a prenuptial agreement based on a range of considerations. These could include:
- Did both parties have independent legal advice before agreeing and signing the prenuptial agreement?
- Were either party under pressure to sign the agreement?
- Did the party who will lose the most fully understood the consequences of the prenuptial agreement when they signed it?
- Did both parties fully disclose their financial situation and assets before the agreement was put in place?
- Was the agreement entered into less than 21 days before the marriage? This would mean that the agreement probably wouldn’t be upheld.
- Have there been any major changes to the couple’s circumstances that would make the agreement inappropriate, such as the birth of a child, for instance.
- Is the agreement fair, reasonable and realistic? Is the division of assets heavily in the favour of one party?
- Has the agreement been reviewed and amended since the couple married?
Each case is individual and there may be other considerations taken into account by the judge when making their decision.
What should you include in a prenuptial agreement?
A prenuptial agreement should be written to suit the couple’s individual and specific circumstances.
There are, however, some common features, which include:
- A schedule of each partner’s assets and finances, such as property, savings stocks, shares, business interests, pensions
- How all assets and finances will be distributed should the marriage fail
- Financial provisions for your children on divorce relating to the assets and funds
Taking specialist legal advice to assist you in drawing up a prenuptial agreement will ensure that you take all assets and possible scenarios into consideration, whether that be the birth of a child or one partner coming into an inheritance, for instance. A solicitor will advise you on all relevant areas of law and provide an overview of your situation now and in the future.
What can a prenuptial agreement not cover?
Certain areas cannot be covered by a prenuptial agreement, such as personal matters and lifestyles stipulations. Also, post-separation child contact and support arrangements cannot be dealt with within a prenuptial agreement; there are specific family law channels which deal with child matters on divorce.
- A review clause, whereby the agreement can be reviewed in the future or should circumstances change
How to make a prenuptial agreement
Both partners must take independent legal advice to ensure that neither is unfairly represented or put under any pressure to enter the prenuptial agreement, and that there is no conflict of interests on the part of the solicitors involved.
There must be a full disclosure of each partner’s financial situations, including assets held.
Through discussion, and legal advice, the agreement is drawn up and finalised, taking into account how circumstances could change in the future, such as the birth of a child, loss of employment or the purchase of further assets.
The finalised agreement is then signed by both partners in the presence of a witness. Each partner should receive a copy of the agreement and a copy may be filed with each respective solicitor too.
When do you make a prenup?
The prenup has to be drawn up and signed at least least 28 days before you get married.
Can a prenuptial agreement be updated after you’re married?
It is not possible to change the terms of a prenuptial agreement once you are married.
If your circumstances change and you and your spouse both agree that changes to the terms of your agreement are required, you would instead look at drawing up a postnuptial agreement to set new terms.
Can you sign a prenuptial agreement after marriage?
You may enter into an agreement once you are married but this would be called a postnuptial agreement.
Will the prenuptial agreement still be valid if you move overseas?
A UK prenuptial agreement won’t necessarily be upheld by a foreign court. Should you move abroad, take legal advice in the country you have moved to to ascertain the position of the local foreign courts in relation to English prenuptial agreements.
Risks when signing a prenuptial agreement
Couples naturally enter a marriage with their eyes firmly set on a bright future together, but for those who have substantial finances and assets, or children from a previous marriage, a prenuptial agreement can be a sensible way to safeguard their livelihood and assets. But even with a prenup in place, there are still risks to consider, such as:
- Whether the courts will uphold the prenup: As a prenuptial agreement is not legally binding in the UK, there are no guarantees the court will follow the provisions.
- Changing your mind: You may agree to an item being handed over to your spouse, or a particular financial arrangement, in the initial agreement and then change your mind at a later stage. As the prenuptial agreement can’t be amended, you would need to both draw up and sign a postnuptial agreement.
- Circumstances changing: For instance, you may have a child, and the agreement doesn’t take this into consideration or provide for their upbringing should the marriage fail. Again, you would need a postnuptial agreement to deviate from the prenup terms.
- Failure to disclose: Full disclosure is an assumption of the prenup. Where one partner does not fully disclose their financial situation, especially their debts and financial obligations, this can impact the enforceability of the prenup.
- Duress: A prenup may not be upheld by the court if it can be shown one partner felt forced into signing the agreement.
An experienced family law solicitor will assist both partners in drawing up a prenuptial agreement that is fair, reasonable and adheres to UK law. Moreover, they can ensure that your prenuptial agreement has the best chance possible to be upheld in court should your marriage fail.
Whether you are the partner who wants the agreement to be drawn up, or are being asked to sign an agreement, having legal advice on your side can offer the reassurance that the prenuptial agreement will work for you and that your future is protected.
Prenuptial agreement FAQs
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Legal disclaimer
The matters contained in this article are intended to be for general information purposes only. This article does not constitute tax, financial or legal advice, nor is it a complete or authoritative statement of the rules and should not be treated as such.
Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission.
Before acting on any of the information contained herein, expert tax, financial, legal or other advice should be sought.
Author
Gill Laing is a qualified Legal Researcher & Analyst with niche specialisms in Law, Tax, Human Resources, Immigration & Employment Law.
Gill is a Multiple Business Owner and the Managing Director of Prof Services - a Marketing Agency for the Professional Services Sector.
