A guide to prenups

What is a prenup?

A prenuptial agreement, often referred to as a prenup, is a legal document drawn up between a couple before they get married. This document explains how their assets, such as property, income and debts, will be divided (or not) if they get divorced, and is tailored to their needs. It can also protect one partner from the other’s debts.

A prenup lasts for the duration of the marriage.

Prenups aren’t legally binding in England and Wales at the moment, although they are in Scotland. However, they are considered by the courts if a couple decides to divorce, and are more likely to be recognised and enforced if:

  • The contract is valid
  • The prenup is made by deed (i.e. there is a written document which is executed with the correct formality)
  • Both parties entered into the prenup willingly, a minimum of 28 days before the marriage or civil partnership, and received legal advice when the agreement was made
  • Both parties disclosed all information about their finances
  • Both parties signed a statement understanding that the prenup is enforceable
  • Reasonable changes can be made to the prenup for any future children’s needs

Couples entering into a civil partnership can have a pre-registration agreement drawn up. Like a prenup, this document explains how the couple’s assets will be divided (or not) if their partnership is dissolved.

What is an ironclad prenup?

You may have heard a prenup referred to as ‘ironclad.’ However, this is not an official term, as prenuptial agreements are not legally binding in all countries in the UK. ‘Ironclad’ is simply a way of describing the most secure, protective prenup a couple could agree to.

How do you get a prenup?

Start by making a list of all the assets you own, both solely and jointly. You can then decide what will happen to each of them if you get divorced – will they be kept by one person? Will you split them? And how will you split them?

The assets in question will vary from couple to couple, but examples include:

  • Business interests (such as business ownership)
  • Income (including future earnings)
  • Inheritance (including children’s inheritance)
  • Pensions
  • Premium bonds
  • Property
  • Savings
  • Stocks and shares
Can I add an infidelity clause?

Infidelity clauses are common in the US, where they are known as “infidelity penalty clauses.” However, in UK family law, conduct is irrelevant when dealing with the financial aspects of a divorce, unless one party has demonstrated exceptional (i.e. extraordinarily bad or good) conduct throughout the marriage.

We recommend seeking legal advice when you’re creating a prenup, either in person or online. A family lawyer will be able to draw up an official prenuptial agreement using the list and decisions you’ve made. Each partner should also seek independent legal advice, to ensure they understand the agreement and are therefore able to sign it willingly and with confidence.

How long does it take to draw up a prenup?

The length of time taken to create a prenup will vary depending on each couple’s circumstances, such as the number of assets included and whether there’s any negotiations throughout the process. It must be completed and signed a minimum of 28 days before the marriage takes place.

How can I negotiate a prenup?

In some instances, deciding the terms of a prenup will be straightforward. In others, you may have to discuss the details in more depth. One way to do this calmly is by using mediation.

A mediator can help you navigate difficult discussions, especially when one of you wants one thing that the other does not. They act as a neutral third party, guiding you towards a decision without taking sides.

The importance of using a mediator shouldn’t be understated, as a prenuptial agreement can be invalidated if a court rules it unfair – for example, if one party was pressured into it or didn’t understand what they were agreeing to. 

How much does a prenup cost?

The cost of a prenup can range from £1,500 to £3,000, depending on how complex the couple’s financial situation may be, and on the value of their assets.

How do I sign a prenup?

You must sign a prenup in the presence of two witnesses, one for each party. They must be independent (i.e. not family members) and over the age of 18. The witnesses must also sign the prenup, and note their address and information about their job.

Can you get a prenup after you get married?

No. However, you can create a postnuptial agreement, which can change the terms of the prenup. Prenuptial and postnuptial agreements are regarded the same way legally.

Can you get a prenup without being married?

Only if you are getting it in preparation for your upcoming marriage. If couples are unmarried and cohabiting, they can get a cohabitation agreement. This is a legal document which sets out what will happen to assets and children should you split up, or if one party becomes ill or dies.  

When is a prenup useful?

A prenup is useful when one or both partners has assets they want to protect, or one partner has (or is likely to have) more assets than the other. For example, they might own land or a business, be getting married for a second time, know they will receive a large inheritance, or want to leave something in their will for their children from a previous marriage.

A prenup can also protect future income, such as pension pots, future earnings, or inheritance.

Essentially, it’s a way to provide clarity on how to divide assets should a couple divorce, instead of leaving it up to the courts to make those decisions.

Can you protect your assets without a prenup?

It’s more difficult to do so. Assets you gained before the marriage will gradually become what’s known as shared matrimonial property (i.e. assets both parties have an interest in), which is more likely to be split equally if you get a divorce.

Are prenups recognised in court?

Yes. While prenups are only legally binding in Scotland at the moment, if a prenup was entered into correctly then the courts are likely to uphold it during the divorce process. They will consider questions such as:

  • Did both parties fully disclose their finances?
  • Did both parties receive independent legal advice?
  • Did both parties sign the agreement without being pressured to do so?
  • Did the party with the fewest assets under the prenup understand the agreement they were making?
  • Would it be just if the agreement was upheld?

If the answer to all these questions is yes, the courts are far more likely to enforce the prenup.

When is a prenup void?

A prenup is void if one or both parties did not fully disclose their finances, or seek independent legal advice, as the agreement could then be considered unfair to one or both parties. Both parties must fully understand the agreement they’re making, and must enter into it freely.

A prenup might not be taken seriously by the courts if issues that cannot be included in one are listed. You cannot include the following issues in a prenup:

  • Child custody (including visitation, schooling and religion)
  • Child support
  • Illegal matters
  • Lifestyle matters
  • Personal matters

Is a prenup void after death?

It depends on the terms of the agreement. Although a prenup’s main purpose is to state how assets should be divided if a couple divorce, you can also use it to state how much your partner will receive if you die. For example, you could say that your partner cannot claim against your estate if your will and your prenup are consistent. A prenuptial agreement can reinforce a will, and vice versa.

Do you need advice on prenups? Contact Manak Solicitors today.

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