Should I sign a Prenup before I get married?

Prenups are becoming increasingly more common in the UK, with more than 1 in 5 couples in UK now consider signing a prenuptial agreement before getting married.

A prenuptial agreement (‘prenup’) is a legal document drawn up before an upcoming marriage/civil partnership to outline how assets will be divided between a couple in the event of a divorce. If you’re entering into a civil partnership, you can have a pre-registration agreement drawn up in the same way.

Why should I have a prenup?

Any couple planning a wedding or civil partnership ceremony should consider having a prenup.  They have often been associated with just the very wealthy but that is no longer the case. 

Anyone can consider entering into a prenup if you want to determine how your property and finances will be dealt with during your marriage, and what happens to them if you separate.

It may not feel very romantic discussing a prenup, but entering a marriage/partnership has legal consequences.  It is therefore important to consider these issues and the benefits of entering into such an agreement to protect yourself rather than leaving this to the discretion of the courts.

What does a prenup protect?

Many people who are marrying later in life or for a second time do not want to risk losing wealth they have already built-up including pensions, property, businesses etc in a divorce settlement.  Pre-marital wealth can be protected in a prenup.

Prenups can also protect future income or inheritance.

What should be included in a prenup?

It is important that you disclose all your financial information to each other.  The agreement can then set out how you will divide your resources if you separate, and how your needs will be met.

It can set out how property and other assets will be divided, including if any should be free from any claim from the other. 

Are prenups legally binding?

Whilst prenups are not currently legally binding in the UK, they are becoming more and more accepted by the courts. Due to recent case law, the courts should now uphold a prenup if it is freely entered into by the parties with full appreciation of its implications unless, it would be unfair to do so in the circumstances.

In February 2014, the Law Commission published its report ‘Matrimonial Property, Needs and Agreements’ which recommends that for prenup to be enforceable, certain requirements must be met:

1. It 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. It must be made by deed and contain a statement signed by both parties that they understand it is enforceable.
3. It must be made at least 28 days 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.
6. The terms of the agreement must not prejudice children of the family.

How long does a prenup last?

A prenup is a legally binding contract and will last for the full duration of your marriage.  It is advisable to review the terms of the prenup from time to time particularly when big changes occur, for example the birth of a child.

How to make sure a prenup is upheld by the court?

For a prenup to be upheld, the agreement must be fair to both parties. This will mean you both need to fully outline your financial circumstances and take independent legal advice on your agreement.

The Supreme Court set out the following three factors that will increase the likelihood of a prenup being upheld in court proceedings:

1. It must be freely entered into
2. Both parties must understand the implications
3. It should not be unfair and hold parties to their agreement in the circumstances prevailing.

What is a postnup?

It is also possible to enter into a ‘Post-Nup’ which has the same effect but is prepared after the marriage takes place. The information above is therefore applicable to both scenarios.

How can we help?

Looking to get a pre or postnuptial agreement? At Smith Partnership, our team in can offer expert advice and assistance in drafting pre-nuptial and post-nuptial agreements to help protect your assets and clarify financial arrangements before or during marriage.

Get in touch with our specialist family law solicitors, by calling 0116 247 2000, complete our contact form, or send us an email via info@smithpartnership.co.uk. 

We also have expert family law solicitors at our offices across the midlands, in Burton, Derby, Stoke-On-Trent and Swadlincote.