Prenup: Our Guide to Prenuptial Agreements

A pre-nuptial agreement, commonly called a prenup, is an agreement between a couple that details how their assets should be divided if their marriage fails. It is signed before getting married and outlines each person’s legal rights regarding the assets that they acquired jointly and/or individually.

Contrary to popular belief, prenups or prenuptial agreements are not just for the rich and famous. Prenups are especially helpful for those who already own things like property or savings before they get married.

• Details of all assets each party brings into the marriage.
• How assets and property will be divided in the event of a divorce.
• Debt protection, ensuring one party isn’t held responsible for the other’s debts accrued before the marriage.
• Business interests, outlining how the business will be treated in the event of a split.

For a prenup to be upheld by the courts, it must meet the following criteria:

• Full financial disclosure: Both parties must disclose all assets and property.
• Independent legal advice: Each party must receive separate legal advice to ensure they fully understand the terms.
• Free from duress: The agreement must be entered into freely, without any pressure or influence from the other party.
• Timing: The prenup must be signed at least 28 days before the wedding to avoid last-minute pressure.
• Fairness: The terms of the agreement must be reasonably fair to both parties. If circumstances change drastically (for example, having children or significant changes in income), the court may override certain parts of the agreement.

Considering a prenuptial agreement (prenup) can be a wise decision in various life situations to protect your assets and interests in case of a marriage breakdown. If you're entering into a marriage with significant property or assets that you want to safeguard in the event of a divorce, getting a prenup is a recommended step. This is particularly relevant if you're concerned about protecting your property if the marriage doesn't work out.

Similarly, if you're about to remarry and have received a settlement from a previous marriage, a prenup can help limit any potential claims on that settlement if the subsequent marriage ends in divorce. This ensures that the assets obtained from the previous settlement remain protected and separate from the new marital assets.

For widows or widowers considering remarriage, a prenup can be essential to safeguard assets acquired prior to the new marriage. This provides peace of mind by protecting your assets in case of another marriage breakdown, ensuring that your inheritance and financial security remain intact.

Additionally, if you foresee an increase in your assets, such as through inheritance, investments, or career advancements, a prenup can delineate these future gains, safeguarding them from the marital pool. 

Entrepreneurs looking to shield their businesses from potential claims during a divorce can also benefit from a prenup, as it helps to separate business assets from other marital property. 

Furthermore, if you wish to safeguard a specific inheritance intended for someone else, like children from a previous relationship, a prenup provides the necessary legal framework. 

If foreign laws might impact asset distribution in a divorce, a prenup becomes a vital tool to protect your assets from being subject to regulations outside your home country. In these scenarios, a well-crafted prenuptial agreement serves as a proactive and prudent measure to address potential financial complexities in the event of a divorce.

Lastly, if you're entering into a new marriage and have children from a previous relationship, a prenup can ensure that your assets are protected for the benefit of your children in the event of a divorce. By outlining your intentions regarding asset distribution in the prenup, you can ensure that your children's inheritance is secured even if the new relationship ends.

Overall, you might want to consider a prenup if:

• You have children or grandchildren from a previous marriage
• You might receive a substantial inheritance in the future
• You’re notably more wealthy than your partner
• You own your own business (or a share of one)
• You could see a big increase in income
• You have or are working towards a qualification in a potentially lucrative profession
• You’ll be supporting your partner through university or college
• You have loved ones who need to be taken care of

While prenuptial agreements can cover many aspects of your finances, some things can’t be included. Trying to put these in a prenup could result in parts of the agreement being ignored or ruled invalid by the courts. Here’s what typically cannot be included in a UK prenuptial agreement:

• Child Custody and Support: You can’t decide on arrangements for your children in a prenuptial agreement. Matters like custody, visitation rights, and child support will always be decided by the court based on what’s best for the child at the time of the divorce.
• Illegal or Unfair Provisions: If your prenup includes anything illegal or deeply unfair, it won’t be enforced. For example, if a clause punishes one party unfairly or promotes divorce, it’s unlikely the court will honour it.
• Lifestyle Clauses: Some couples try to include lifestyle clauses, such as who does the housework or agreements about personal appearance. These won’t hold up in court because they’re not financial matters - prenups are strictly about money and assets.
• Waivers of Child Maintenance: You can’t use a prenup to avoid responsibility for child maintenance. The court will always put the needs of children first, so any attempt to waive these obligations won’t be accepted.
• Personal or Non-Financial Matters: Prenuptial agreements are about assets and money - anything outside that, such as personal promises or non-financial obligations, won’t be enforceable.
• Discriminatory or Prejudicial Terms: Any clause that harms the rights or well-being of children or other family members will be dismissed by the court. This might include trying to exclude children from an inheritance or compromising their financial future.

To sum up, while prenups are a great way to protect your financial interests, they do have their limits. The courts won’t accept terms that stray into personal, lifestyle, or child-related areas. For a prenup to be effective, it needs to be fair, focus on finances, and be drafted with full financial transparency and proper legal advice.

Prenuptial agreements or Prenups are not technically legally binding in the UK. A prenup is a legal document that is made before two people get married which lays out their intentions in terms of how their assets should be split in the case of a divorce.  

Although prenups are not technically legally binding, it has been found through case law that courts are accepting prenups more and more as the intentions of the parties involved when they first entered into the marriage. For example, in 2014, the Law Commission recommended introducing "qualifying nuptial agreements", based on their “Matrimonial Property, Needs, and Arrangements” report. This would allow couples to make binding arrangements about their finances in the event of a divorce. However, these agreements would not allow couples to contract out of their obligation to meet each other's or their children's financial needs. Essentially, this means that a prenup that meets certain criteria could be legally enforceable in the UK, provided it does not exclude the duty of care for financial responsibilities like maintenance​.

These recommendations have not been fully implemented into law yet, but they do reflect the courts' increasing willingness to uphold prenups, as long as they meet specific fairness criteria. 

Currently, courts still retain the discretion to disregard prenups if circumstances have changed significantly or if the agreement is deemed unfair.

If you don't have a prenuptial agreement in place and your relationship ends, the way your assets and property are divided will be decided by the court. UK courts have wide discretion and will aim to achieve a fair outcome based on a number of factors, as outlined under Section 25 of the Matrimonial Causes Act 1973. These factors include:

• How long you were married
• Financial needs and future prospects
• Contributions to the marriage
• The lifestyle you had during the marriage
• The needs of any children

Without a prenup, there’s a risk the court may divide your assets in ways you hadn’t expected, which could result in the outcome being contrary to what you expected. This is why many couples choose to set up a prenuptial agreement - to give themselves peace of mind and more control over how their assets will be divided, rather than leaving it entirely up to the courts.

The cost of drafting a prenuptial agreement in the UK can vary depending on several factors, including the complexity of the agreement, the assets involved, and the solicitor(s) you choose to hire to help you with the process.

• Complex Finances: If you or your partner own a business, have multiple properties, or other significant assets like savings, it may take more time to draft the prenup. The more complex your financial situation is, the more detail your solicitor will need to include to make sure everything is covered properly.
• Independent Legal Advice: You and your partner will each need your own solicitor. This is to make sure the document is fair for both of you, making it even more likely to be upheld by the court (should it ever be needed).
• Negotiations: If you or your partner need to make multiple changes or have your solicitor negotiate parts of the agreement, you can probably expect a higher cost. The more time your solicitor spends on adjustments, the higher their legal fees might be.
• Location: Where you live can also have a notable impact on the cost. If you live in a major city like London and choose to instruct a local solicitor, their legal fees are likely going to be higher than in smaller towns or rural areas.

It’s always a good idea to speak to your solicitor upfront about the costs involved. This way, you’ll know what to expect, and there won’t be any surprises down the line. At GloverPriest, we can walk you through the process, ensuring your prenup is tailored to your needs and set up correctly from the start.

While the process and contents are very similar, Prenuptial Agreements for those entering a Civil Partnership are called Pre-Registration Agreements or Pre-Civil Partnership Agreements.

Without the help of a legal expert, writing your own prenup could lead to problems. You should think about when the agreement needs updating, especially if there are big changes in your partner's finances or if you have children. It's best to talk to a family lawyer who knows about prenuptial agreements. They can make sure your agreement covers everything it should and is legally solid, even if you don't ask them to write it for you.

Avoid using pre-made prenuptial agreements because they might not fit your situation. With a lawyer's help, you can create a prenup that's right for you, protecting your interests and making sure your intentions are clear and legally binding.

Prenups play a critical role in family courts and in determining divorce outcomes. Therefore, it’s a good idea to contact an experienced Family Law solicitor if you need a prenup that protects your interests.

Our Prenuptial Agreement lawyers and family law experts have extensive experience drafting Prenuptial Agreements that are fair and right for you.

If you’d like to have a free, 30-minute introductory meeting with one of our specialist Prenup Solicitors to see if a Prenuptial Agreement is the right decision for you and your future, get in touch.

On Legally Heard, we catch up with our expert solicitors at GloverPriest Solicitors who give us monthly insights into laws that affect your life.

This is not your average legal podcast, we give practical tips to handle important situations in your everyday life. From divorce to finances, property, children and Wills. 

Our podcast on “The Prenup Conversation: From Romance to Reality” is available now; listen on Spotify here.

A prenup provides an excellent opportunity for you and your partner to openly discuss finances before marriage. Each of you declares your assets and liabilities, so there are no financial surprises in the future. It also allows you to plan how to divide your assets in case of a divorce. Although not always possible, you can often avoid lengthy and costly proceedings.

Additionally, a prenup can safeguard you from your partner’s debts, especially if they are substantial. You can include a clause that limits your liability and protects you from acquiring responsibility for any debts your partner accrued before the marriage.

While a prenup is not legally binding in the UK, the divorce court may accept it as evidence of a couple's intention, especially if it was drafted by a family law solicitor. It should not leave either party in financial hardship or cause harm to the children’s fair requirements.

You can, in theory, write your own prenup, however this is not recommended.

While the idea of writing your own prenuptial agreement may seem appealing, saving time and money, it's important to understand the potential risks involved. At present, prenuptial agreements are not legally binding documents. However, if you hope to have a court consider the terms outlined in a prenup, it must be prepared in a specific way. One of the key parts of this includes ensuring that both parties have received proper legal advice regarding the agreement's implications.

In most cases, both parties must sign a prenuptial agreement at least 28 days before the scheduled wedding date. This timeframe allows both parties to receive proper legal advice before signing, ensuring fairness and preventing coercion. 

Negotiating and agreeing on the terms of a prenuptial agreement can take several months, so it's often beneficial to start the process well in advance of the wedding date. This prevents any rush and stress before the big day and allows for thorough consideration of all aspects of the agreement on both sides.

If you do not want to enter a pre or post-nuptial agreement with your partner, you can protect your assets as part of divorce proceedings through other means. For instance, getting a solicitor to draft you a Consent Order instead, or setting up a trust which holds assets outside your marital estate.

A Consent Order is a legal document that confirms the agreement that is made between yourself and your spouse during the divorce process affirming how you are going to divide up your assets. Once the court has approved the Order, it is legally binding and cannot usually be changed unless an appeal is upheld by another judge. The consent order will include a rationale for how you have decided to split the assets so that the judge can check that everything is fair and achievable.

No, a postnuptial (postnup) and a prenuptial agreement (prenup) are different.

A prenuptial agreement is a contract that is entered into by a couple before they marry or enter into a civil partnership. It outlines how the couple wishes to divide their assets and finances in the event of a divorce or dissolution. While it is not legally binding in the UK, it clearly demonstrates the intentions of each party.

On the other hand, a postnuptial agreement is similar to a prenuptial agreement but is entered into after the marriage or civil partnership has taken place. It serves the same purpose of outlining the division of assets and finances in case of a future separation or divorce.

The main difference between the two is the timing of when they are created before or after the marriage/civil partnership.