Prenuptial Agreement

What is a Prenuptial Agreement?

A prenuptial agreement is a written agreement between a couple before their marriage. A couple sign a postnuptial agreement during the marriage. Nuptial agreements set out what you and your (intended) spouse agree should happen to your assets if, sadly, your marriage breaks down and you separate.

At one time, prenups were associated with the very wealthy, but today they are increasingly prevalent. One reason for this is the tendency for couples to marry later than in previous generations. This means that each party has had more time to accumulate assets – a home, pension, savings, etc. – before marriage than their parents or grandparents.

There are also now far more second marriages, perhaps with children from earlier relationships. As such, couples often seek to maintain a distinction between the assets each party brings to the marriage.

Nuptial Agreements are useful when one or both parties would like to retain assets they acquired before the marriage, should they divorce.

Are prenuptial agreements legally binding?

Couples who decide to enter into a prenuptial agreement are often surprised to hear that they are still not legally binding in England and Wales. Despite that, the court will always consider the terms of any agreement very carefully, paying particular attention to whether:

• the parties entered the agreement voluntarily and without duress.
• both parties understood the implications of the agreement.
• there was full disclosure of assets and liabilities.
• both parties obtained independent legal advice.
• the terms of the agreement are fair.

If the court is satisfied with all of these factors, there is a strong probability that the judge will uphold the agreement.

Couples are advised to sign a prenuptial agreement some time before marriage – usually at least 28 days. This helps demonstrate to the court that each party had sufficient time to reflect on the agreement – essentially a ‘cooling-off’ period – and that neither party experienced undue pressure from the other.

How do I get a prenuptial agreement?

There is considerable scope to get a prenuptial agreement wrong, either in content or procedure. Therefore, avoid homemade prenups and always contact us for legal advice.

Couples can be deterred by the need for each of them to receive independent advice. Cost may be a concern, but a prenup is usually relatively inexpensive. In any event, the potential certainty it brings to any future relationship breakdown should render the cost a very worthwhile investment.

There can also be a worry that obtaining independent advice will create tension, mistrust and disagreement. However, proceeding without independent advice substantially increases the chances of the court not upholding the agreement. Remember, a solicitor must advise you objectively on the proposed agreement to better enable you to make an informed decision. And if they highlight a potential issue, the chances are that your partner has also received the same advice.

Our Family Law Team has considerable experience advising on and drafting pre- and post-nuptial agreements. Contact them on 01225 462871 or complete the Contact Form below.