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Prenuptial Agreements

Key Points

  • Prenuptial agreements (or ‘prenups’) lay out before a marriage who will be responsible for the property and finances of each partner during the marriage, and who this wealth belongs to following a divorce.
  • The equivalent agreement for those entering into a civil partnership is called a pre-registration agreement.
  • Prenups can help you protect:
  • assets owned prior to marriage
  • expected inheritance
  • trust funds
  • assets you want to leave children from a previous marriage
  • Prenups are not yet legally binding in the UK but will be taken into serious consideration by the courts.

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Why should I have a prenuptial agreement?

You should consider entering into a prenuptial agreement (often called a prenup) before you get married if you want to determine how your property and finances will be dealt with during your marriage, and what will happen to them if you get divorced.

If you’re entering into a civil partnership, you can have a pre-registration agreement drawn up in the same way.

A prenup can help you to protect your, or your spouse’s, wealth in the event of a divorce. Prenups offer some certainty in circumstances where you would prefer to agree in advance the distribution of your assets on divorce, rather than leaving it to the discretion of the courts. You may wish to consider a prenup if you want to protect:

  • inherited wealth, or expected inheritance, that you might want to keep or pass on to specific people
  • assets that you have acquired before your marriage
  • trust funds
  • assets you want to give to children from a previous marriage

Are prenuptial agreements effective?

Whilst prenups are not legally binding in the UK at present, they are accepted more and more by courts as proof of a couple’s intentions should they divorce.

Prenups aren’t only for the rich and famous; anyone who wants to protect property and assets that they bring into a marriage will find them invaluable. In February 2014, the Law Commission published its report ‘Matrimonial Property, Needs and Agreements’ which recommends that for prenuptial agreements to be enforceable, certain requirements must be met. It is summarised as follows:

  1. The agreement must be contractually valid (and able to withstand challenge on the basis of undue influence or misrepresentation, for example).  It must be entered into freely and willingly by both parties.
  2. The agreement must be made by deed and contain a statement signed by both parties that he and she understand it is enforceable and will partially remove the court’s discretion to make financial orders.
  3. The agreement must not have been made within 28 days immediately before the marriage or civil partnership.
  4. Both parties must have received, at the time of the making of the agreement, disclosure of material information about the other party’s financial situation.
  5. Both parties must have received legal advice at the time that the agreement was formed.
  6. The terms of the agreement must not prejudice the reasonable requirements of any children.

The leading case authority on prenups is Granatino -v- Radmacher. Baroness Hale of Richmond gave a dissenting judgement in the case stating “the object of a prenuptial agreement is to deny the economically weaker spouse the provision to which she – it is usually although by no means invariably she – would otherwise be entitled”.

As the Law Commission report recommends that prenuptial agreements should be made legally binding in English courts, we expect to see prenups used on an increasing basis as people feel more confident that their terms will be taken seriously.

How do I make a prenuptial agreement?

Contact us now.

Our highly experience family lawyers have a wealth of experience in drafting effective prenuptial agreements, tailoring them to meet individual requirements which can determine how possessions — from substantial property to the car — are dealt with.

What will a prenuptial agreement cost?

To some extent, this depends on the detail you wish to include in your prenup and whether there is to be a full exchange of financial information or whether this is set out simply in appendix format. We offer a fixed fee service for preparation of prenups, and will confirm the cost once we know your requirements.

Contact our family law experts now to discuss your individual needs or to make an appointment for a confidential meeting.

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