A guide to prenuptial agreements

Last updated on May 20th, 2022 at 06:36 pm

What is a prenup agreement, and why should I consider one?

A prenuptial/pre-registration agreement in the UK or a pre-marriage agreement is an agreement which both you and your partner enter into before a marriage or a civil union. A prenup is usually drawn up by a family solicitor, setting out how your finances will be resolved should you and your partner end up separating or getting divorced. Many people use a pre-marriage/pre-registration agreements to protect their assets, especially if one partner has significantly more wealth than the other or is likely to come into significant wealth in the future, through a large inheritance. A pre-marriage/pre-registration agreement can also look to protect any assets that you want to leave children from a previous marriage/civil partnership. A prenup gives you control by setting out the express intentions of both parties when entering into a marriage or civil union as to what you wish to happen on separation.

How can I protect myself without a prenup agreement?

While there are a few things you can do to protect your assets without a prenup, a prenup agreement can act as an insurance policy should you end up getting divorced. While they are currently not legally binding in the UK, the courts can take prenup agreements into serious consideration. Having a prenup agreement professionally drawn up by a prenup  lawyer can help offer you peace of mind that you have already agreed how your assets will be divided should your marriage end in divorce.  The prenup sets out the intentions of both parties at the outset of the marriage, hopefully reducing any future conflict.

What happens to my assets if I do not have a prenup agreement?

If you do not have a prenup agreement all your assets, including those that you had before your marriage, will be divided up at the divorce/dissolution court judge’s discretion, unless, of course, both parties reach an agreement on how they wish to divide their assets privately. The courts in England and Wales consider various factors  when it comes to deciding how they carve up assets, taking into consideration, for example, the length of the marriage, whether there are children, as well as sources of income and the needs of each party.

How can I protect myself when my partner will not agree to a prenup agreement?

If you do not have a prenup agreement, perhaps because your spouse refused to sign one, then there are a few things you can do to help protect your assets:

• Keeping your funds separate, and not commingling funds
• Keeping your property, or property investments, in your name
• Maintaining any property in your name using your non-marital funds
• Obtaining a valuation of any businesses that you own before you get married
• Making sure you keep statements of any pension and retirement funds at the date of marriage

However, without a prenup it will be difficult to prove to the court what the initial intentions of the couple were at the start of the marriage/civil partnership.  When people marry without a prenup, they commit to the sharing principle. Without a pre or post nup this is 50/50, unless the court can be convinced otherwise.

If you are already married and decide you want a prenup agreement, it is not too late! A prenup lawyer, such as those at Graysons, can help you draw up a post nuptial agreement.

Are pre-marriage/pre-registration agreements in the UK legally binding?

Currently, prenup agreements in England and Wales are not legally binding. However, they can act as a type of insurance, helping to try and limit potential claims on assets and thereby lowering the risk of costly litigation. However, in the hope of a prenup been given any weight by a court,  it is vital that any pre-marriage agreement is properly drawn up and both parties have proper legal advice.  An experienced prenup lawyer, such as those at Graysons, will be able to draw up a prenup agreement.

If either party seeks to renege on the pre-nup following separation, the court will then consider the pre-nup and determine whether to uphold or depart from it.  That is why it is vital the document is properly prepared and specific criteria met..

Should I use a prenup lawyer to help me with a pre-marriage/pre-registration agreement?

Yes, an experienced prenup lawyer will be able to draw up a UK prenuptial agreement that can be taken into account by the courts, therefore giving you the best chances of protecting your financial assets. For this to happen, a pre-marriage agreement must meet specific criteria.

• The prenup agreement must have been made at least 28 days before the date of marriage/civil partnership
• Neither party was under duress, nor forced to sign the pre-marriage agreement against their will
• A full disclosure of each parties financial wealth was made – no assets were hidden
• Each party received legal advice about the pre-marriage agreement
• The prenuptial agreement is deemed to be fair and reasonable
• The pre-marriage/pre-registration agreement must meet the needs of any children
• The prenup agreement must be made by deed, and contain a statement by both parties that they understand its implications, and that it may remove the court’s discretion to make decisions on how assets will be handled in the event of a divorce.

What can I put in a prenuptial agreement UK?

No two UK pre-marriage/pre-registration agreements will be the same as everyone’s financial situations are different. A prenuptial agreement commonly identifies assets that are ringfenced should the marriage end, as well as which assets will be split, including the proportion each spouse or civil partner will receive.  It may also include any details of spousal maintenance that will be provided. When entering into a prenuptial agreement a good place to start is to make a list of both parties assets, then agree as to how you will divide them up should you divorce. Many people, in particular those marrying/entering into a civil partnership later in life or marrying for a second or even third time with children from previous marriages/civil partnerships, will have accumulated assets that they wish to protect should the marriage/civil partnership end.

A prenup agreement typically covers:

• Assets, including property, savings, trust funds, and investments, such as stocks and shares
• Past and any possible future inheritances
• Business interests
• Pensions and retirement funds
• Where divorce and financial proceedings will take place if there is a choice, especially for those entering an international marriage
• Income, both present and future

A qualified and experienced prenup lawyer, such as the team of legal experts at Graysons, will be able to advise you what to include in your prenuptial agreement, while also making sure that it meets specific criteria.

What is a post-marriage agreement or post-nup?

A post nup is a prenup made after a wedding. Known as a post nuptial agreement, it can still be seriously considered by the courts in the same way as a pre-marriage agreement, if it meets specific  criteria and has been prepared in the correct way, by an experienced prenup lawyer.

Do I need to use a prenup lawyer near me?

No, you do not need to use a prenup lawyer located close to you. When drawing up such an important legal document, it is essential that you seek out the best prenup lawyer, such as our team of legal experts at Graysons.