Planning your prenuptial agreement

Are Prenuptial Agreements Worth It? Should We Get One?11th Jun 2021

by Anna Burton on 11th Jun 2021

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What Is A Prenuptial Agreement?

A prenuptial agreement is a legal document that is signed by a couple before they marry. (The equivalent document for civil partnerships is called a pre-registration agreement.) The couple agree in advance how their property (and debts) will be divided if they decide to end their marriage or civil partnership.

You may also see these documents referred to as premarital or antenuptial agreements – but ‘prenuptial agreement’ (or ‘prenup’) is the more common term. They’re important documents that could save you a great deal of expense, time and heartache later on.

But whatever you do, don’t leave it until the last minute. You need to start the process at least three months before your wedding day (for reasons that will become apparent later in this blog post)…

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Why More Couples Are Signing Prenuptial Agreements

Prenuptial agreements used to be the sole preserve of rich and famous celebrities – but not anymore. Rising property prices are turning more couples into millionaires. Besides, you don’t have to be wealthy to safeguard your nest egg.

Record numbers of couples are now signing prenups. Especially those who are remarrying: they want to protect their children’s inheritance (and avoid repeating the legal rows of their first divorce).


Does Signing A Prenuptial Agreement Make Divorce More Likely?

There will always be those who suggest that prenups are not romantic. Or that you’re tempting fate if you prepare for the possible end of your marriage before it has started.

But couples whose love is strong, who are mature and level-headed know themselves. They trust and have faith in each other. They know that life is not always a bed of roses. And if their marriage doesn’t work out, a prenuptial agreement will help each to go their own way quietly and with dignity – avoiding a painful legal battle. Even when the love has faded, you owe each other that at least.

Take it from an experienced family law solicitor who’s seen a lot of couples going through divorce: if you’re splitting up, you’ll wish you’d signed a prenup.


What Are The Benefits Of Signing A Prenup? Why Do I Need One?

There are two aspects to a prenuptial agreement. Best known is the element of financial protection that it can offer. People sign prenups because they’re worried about losing substantial assets – property, pension pots, family heirlooms – in the division of finances that goes with divorce.

This fear is particularly acute if one partner is richer than the other. Perhaps their family worries too: they may quietly disapprove of the fiancé/fiancée, perceiving them to be at worst a gold-digger or at best an opportunist hedging their bets.

Signing a prenuptial agreement can help you to:

  • safeguard your children’s inheritance or other key assets (this can be especially important if you are remarrying)
  • ringfence your own inheritance, savings, investments or business assets
  • allow one partner in the relationship to retain full control of their business
  • stop your partner from saddling you with their large debts.

The second aspect to signing a prenuptial agreement is less well known. And that is this…

It allows you to focus on key rights ahead of the marriage. It won’t allow you to rewrite the law: you won’t be able to opt out of rights that are enshrined in statute. But it will help you to plan and chart the course of your marriage before you exchange rings.

You’re much more likely to reach your destination – wedded bliss – if you both know the way and you’ve agreed on the route.


Is A Prenuptial Agreement Legally Binding And Enforceable?

In theory, prenuptial agreements are not automatically legally enforceable. But in practice, family courts take them very seriously. A well-drafted prenup will form the basis of an agreement on how the finances are to be divided.

Many courts can and do make orders based on prenuptial agreements. And they can enforce those orders. 

Prenuptial agreements can be legally binding if they meet certain criteria set out by the Supreme Court and reviewed by the Law Commission. Court decisions based on these binding agreements can be enforced.


What Makes A Prenuptial Agreement Legally Binding?

For a prenup to be binding and enforceable, it must be entered into freely and it must be fair. Both parties must understand the importance of the document. There should be full disclosure of the wider financial circumstances of the agreement.

The agreement must be a valid contract. It must have been signed at least 21 days before the wedding. Both parties must have received their own independent legal advice beforehand (this makes DIY prenups impossible to enforce – so avoid them).

Both parties’ needs should be met by the agreement. And it should not prejudice the children. Their welfare is always uppermost in the minds of any family court judge.


Can You Change Your Mind After Signing A Prenup?

Here’s a scenario…a couple signs a prenuptial agreement. Years later their faltering marriage finally peters out and they’re heading for the divorce court.

One partner waves the prenuptial agreement at the other, telling them what’s going to happen, how the finances will be divided…and pointing to their two signatures on the respective dotted lines.

But their former partner has other ideas. They no longer care about the prenup; they claim that it’s not legally enforceable. They say they:

  • never really wanted a prenup
  • were cajoled or pressured into signing it
  • signed the agreement without first taking legal advice
  • were the victim of their partner’s controlling behaviour (citing it as a factor in the breakup).

And they refuse to abide by the prenuptial agreement. So what happens then?

Here’s the reality: you can’t change your mind if you signed a binding agreement. If the agreement meets all the Supreme Court/Law Commission criteria then it is likely to be upheld.


Unconscionable Prenuptial Agreements

In our experience, the court would almost certainly ignore a prenup where one party’s needs are not met – particularly if the couple have children. A common scenario in this instance is where one person is left without enough money to house themselves or their children.

If the prenup is unfair, the disadvantaged person could successfully argue that the court should not follow the agreement. This doesn’t necessarily mean that the entire prenup will be of no relevance; the court may uphold parts of the agreement but not others. 

We can help you to ensure that your agreement is fair so that there is no dispute should your marriage break down. 


Can I Get A ‘Common-Law Prenup’?

There is no such thing as common-law marriage. It’s a myth. You do not gain any common-law rights simply because you’ve lived with a person for a certain length of time. This can come as a dreadful shock to some unmarried people when their relationship ends.

So you might well assume that, if there’s no such thing as common-law marriage, then there’s no such thing as a common-law prenup. But you’d be wrong: there is (but only in a manner of speaking).

Cohabitation agreements allow couples living together to decide if the property is owned jointly or by one person.

And even if the property is owned in one name, the other person may have a claim under the Trusts of Land And Appointment of Trustees Act 1996 (aka ‘TOLATA’). This is a complex and potentially expensive area of the law that requires specialist legal expertise. We can help you with this.


International Prenuptial Agreements

Prenuptial agreements can be recommended if the two people marrying are from different countries. You would need to consider the law in both jurisdictions.

These agreements are enforceable in a wide range of countries including Australia, Austria, Brazil, Canada, China, Denmark, Finland, Germany (subject to numerous limitations), Greece, Japan (under certain conditions), Luxembourg, the Netherlands, New Zealand, Portugal, Russia, South Africa, Sweden, Switzerland, Taiwan, Thailand, Turkey, Turkmenistan and the USA.

And like Britain, other countries may also take prenuptial agreements into consideration – or enforce them – if they meet certain criteria under their legal system.

You will need expert advice. Our divorce lawyers have experience in dealing with cases involving more than one country. Book a free chat.


How Much Does A Prenuptial Agreement Cost?

Much less than the cost of going to court. If a prenup saves you just one hour-long court hearing then it will have paid for itself.

And that doesn’t include the cost of all the time you would have wasted without this useful plan to divide up your finances. Or the value of the assets themselves.

The price of a prenuptial agreement is a fraction of what you could lose in a divorce if you don’t have one.

Prices start at £500-£750 plus VAT if you would like us to check through and advise you on a prenuptial agreement drafted by another solicitor. Or £1,500-£2,000 plus VAT if you would like us to draft one for you.

Suffice it to say, a prenuptial agreement gives you financial peace of mind. And if you never have to use it, then congratulations – you have a happy marriage (or civil partnership).

So you win either way.


Getting A Prenup: How Long Does It Take?

How soon should you start thinking about a prenuptial agreement? The earlier the better. We often take instructions from couples who haven’t even set a date for the wedding yet.

Start the process at least three months before you want to get married. There’s a lot to think about and you don’t want to rush it.

You need to sign the agreement at least three weeks before you marry. Don’t leave it any later than that – otherwise you risk the suggestion that there was last-minute pressure to agree.


What’s The Process For Getting A Prenuptial Agreement?

You and your partner will both need your own solicitors. One person (the one protecting their assets) will draft the agreement; the other will need to take advice on the effect of the agreement on their rights.

Usually financial disclosure is exchanged and set out in a schedule to the agreement. Then you finalise the agreement and sign it the presence of witnesses.

We can provide you with a Covid-safe environment (and witnesses) when you come to sign the agreement.


Postnuptial Agreement (A ‘Prenup For After Marriage’)

By now you’ve probably realised that prenuptial agreements merit serious consideration. For many, they no longer conjure the prejudices they once might have done.

Perhaps you’re already married and are now wishing that you’d signed an agreement before you tied the knot.

It’s not too late: you may wish to consider a post-nuptial agreement. These work in much the same way as a prenup, except that you sign the document after the marriage. There also exists a post-civil partnership agreement.

Like prenups, post-nups are not automatically binding. Some lawyers believe they may be more likely to be upheld than a prenup because they weren’t signed amid the pressure of a looming wedding.

But this isn’t necessarily true because – strictly speaking – prenups and post-nups are subject to the same legal considerations on divorce.


Further Reading On Divorce


Get Expert Legal Advice

Prenuptial agreements are an excellent way to ensure peace of mind. But they don’t suit all couples. And when they do, they’re not a ‘one size fits all’.

So it pays to have an informal chat with an experienced solicitor before you embark on the process.

Contact family law solicitor Anna Burton for more information about prenuptial and post-nuptial agreements (and their civil partnership equivalents).