Prenuptial Agreement Solicitors
What is a prenuptial agreement?
A prenuptial agreement (Prenup) is a contract that is drawn up between a couple before they get married. The agreement details what will happen to both spouses' pre-marital, and marital finances, debts, assets, and belongings, in the event that the couple decided to divorce. Each agreement is bespoke and dependent upon the wishes of the couple, however, both parties must agree to all terms.
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What does a prenuptial agreement cover?
The prenuptial agreement can cover anything that the couple making it wants to agree to. Typically, a prenup would list the following:
- Family home
- Any other properties
- Sentimental value items
- Business interests
Is a prenuptial agreement legally binding?
It’s important to note that while prenups are legal documents that will be considered by the Courts when prepared correctly, the Court may choose to divide a couple’s differently to how it is set out in the prenuptial agreement. If the prenup should place either spouse in a position of financial hardship after divorce, the Court will take this into consideration and decide if they should be held to the terms.
We can assist and advise in ensuring that your document is fair in your circumstances and more likely to be upheld by the court in the future.
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Frequently asked questions
Couples should consider a prenuptial agreement before they marry if they want to determine how their finances and property will be dealt with while they are married in the event that they separate in the future. The agreement offers a level of certainty and clarity for couples who would prefer to agree on the distribution of assets before they marry rather than doing it at a later date. We often find that couples can be in a better position to properly consider a fair outcome at the outset of the relationship rather than at a time of later difficulty between them.
The agreement works by identifying certain assets that you wish to deal with in a specified way upon a potential future divorce settlement. Both parties should disclose all their financial assets in order to consider who should receive what in the event of separation.
If you decide you want a prenup you must do the following:
- Consider whether you would like to protect/define what happens with certain assets should you separate
- Talk to your partner regarding your finances
- Consider the needs of any children or dependents
- Make a list of property, savings, investments and other assets. Debts may also need to be included.
- Consider shared and separate property
- Decide how to pay any existing debts
- Define any financial support
- Decide what happens to the family home
- Consider your respective and joint incomes and outgoings
- Consider any third party financial obligations or considerations
- Decide how any taxes will be paid
- Decide how long you want the agreement to last for
- Ensure it is fair for both parties
A fair prenuptial agreement should consider what is important to the parties involved. This may be protecting pre-marital assets, or ensuring that specific contributions are accounted for. Any order must be fair in the circumstances and ensure the housing and other needs of the parties and any children. Both parties should be represented by different lawyers and full disclosure of assets will be required.
Prenuptial agreements generally are designed to last the duration of the marriage. However, as prenups are bespoke, if both parties agree they can include an end or review clause.
The cost of a prenuptial agreement will depend on the complexity of the situation. Prices would generally start at around £2,000 plus VAT. However, the cost will vary depending on the assets and financial situation of both parties and anything they want to be included.
A prenuptial agreement can be deemed invalid for the following reasons:
- If it can be shown that one party was mentally ill or coerced when they signed the agreement or didn’t realise what they were signing.
- If the prenup was poorly drafted or completed incorrectly
- If one or both parties failed to disclose their true financial position
- The prenup was signed without proper legal representation
- The prenuptial agreement contains requirements that could be seen to control or demean a spouse.
- If a party can show that they signed under duress, not having sufficient time to consider the terms.
It is possible to cancel your prenuptial agreement by using a Release of Marital agreement if you and your partner have decided that you no longer require it. Both parties are required to sign the document and it must be notarised by a public notary to ensure the cancellation is valid.
The question of whether or not a pre-nuptial agreement is binding in the UK is an interesting one. As a position of common law is that pre-nuptial agreements would be an important indicator to the court of the intention of the parties at the time they entered into their relationship. In particular, in relation to assets which were pre-acquired before the marriage. They do not however oust the jurisdiction of the court, and the court still has the ability to meet the needs of the parties. If the pre-nuptial agreement is carefully drafted, and makes prevision for review of change of circumstances. The most obvious one being if the parties have a child. Then there is every likelihood that in fact, the court will hold both parties to the agreement. Providing they've both had legal advice at the time the agreement was entered into and given proper disclosure of their financial position at that time.
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Jessica is an Associate Solicitor and has specialised in family law throughout her career