Commonly asked questions about prenuptial agreements
What is a prenuptial agreement?
A prenuptial agreement (also referred to as an antenuptial, pre-marital or pre-civil agreement) is an agreement reached by a couple before they marry or enter into a civil partnership.
A prenup sets out exactly who owns what out of all the couple’s belongings, assets, property and money. It then lists how these will be divided if the relationship should break down.
Without a prenup, in the event of a divorce, the courts starting position will generally be to divide everything equally between both partners – although the first priority will be to ensure the needs and welfare of any children are met. If one partner has brought more assets into the marriage than the other, they may feel resentful at the idea of an equal split.
Although some people may feel a prenuptial agreement is a little cold hearted, it is actually extremely sensible. Many couples find it awkward to talk about money and finances within their relationship, let alone when they’re breaking up. However, a prenup provides clear instructions, drawn up while both parties are in a reasonable frame of mind rather than in the emotional turmoil of a separation – and can give both partners reassurance that they’re protected for the future.
Who should get a prenup?
You should think about setting up a prenup if you:
- Have been married before and want to protect assets (for yourself or children).
- Have children from an earlier relationship and want to protect their inheritance and keep certain items or assets for them.
- Are bringing assets and/or property to your marriage that would be difficult to split.
- Have your own business or investments and want to keep control of them.
- Want to safeguard money or assets that you are expecting to receive in a future inheritance.
If your partner has incurred debts before your marriage, you may want to include a clause in your prenup to assert that you are not responsible for those debts. This will ensure that they are not repaid out of your share of the joint assets.
Prenuptial agreements are particularly useful when one partner has, or has expectations of receiving, considerably more assets than the other. For example, if you are owner or part-owner of a family farm, business or land, or are expecting a significant inheritance. Or if you already have a successful business and are marrying later in life, or have been married before.
Are prenuptial agreements legally binding in the UK?
Currently in England and Wales, prenuptial agreements are not legally binding. However, if done correctly the court will take them into consideration when agreeing your divorce settlement.
If you want to make sure your prenuptial agreement is enforceable, you and your partner must both have taken legal advice independent of each other. Your solicitors need to have advised you on the contents of the agreement and how it would affect you both if you decided to divorce.
This is important, because if the court believes one of you did not get the right advice, and that this put them at a disadvantage, it can decide to ignore the prenuptial agreement when reaching a decision.
Can I get a prenup after marriage?
‘Pre’ means ‘before’, so a prenuptial agreement is one that is set up and signed before your wedding or civil partnership. However, it’s also possible to set up a similar arrangement if you are already married, which is called a postnuptial agreement. This can be agreed at any time during your marriage.
Like a prenuptial agreement, a postnup isn’t legally binding but it would be considered by the court when making decisions on the division of assets on divorce, as long as it has been signed by both partners willingly, after they’ve each taken independent legal advice. If done correctly postnups are seen as more binding than prenups, as you’re already married, For example, there are likely to be reduced concerns of duress.
How does a prenuptial agreement affect a Will?
Ideally, an up-to-date Will, would reflect the terms contained in a prenuptial agreement and vice-versa. If someone dies and their prenup contradicts the terms of their Will, it may give rise to other claims; so it is important for your solicitors to work together.
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