Prenuptial Agreements

• What is a prenuptial agreement?
• Why would you use a prenuptial agreement?
• Should I have a prenuptial agreement?
• What are the contents of a prenuptial agreement?
• What does a prenup not include?
• Financial protections in a prenup.
• Are prenuptial agreements permanent?
• Are prenuptial agreements legally binding?
• Are prenuptial agreements effective?
• Can a prenuptial agreement be modified?

What is a Prenuptial Agreement?

Many people in the UK have heard of a prenuptial agreement (or “prenup” as it’s more commonly known) as it quite often features in films and sit-coms as a point of contention or humour. A prenuptial agreement is a legal document drawn up before a marriage (there are “postnups” as well!) to outline how each of the individuals in a marriage want their assets to be divided in the event of a divorce.

The sort of items that get included in a prenuptial agreement include property and assets of value or sentimental attachment. It can also include debts and pensions as well as other investments.

Not surprisingly a prenuptial agreement is more likely to be used where one partner has more assets of money than the other partner. This is why you can often find prenups being more popular amongst those entering second marriages or marriages in later life, as people are more likely to have accrued more property, land or inherited from their parents. If there is an age difference as well there can be a stronger desire to put a prenup in place.

This can all sound a little cynical but there are serious practical reasons why a prenuptial agreement is sought.

Why Would You Use a Prenuptial Agreement?

Many people do not like uncertainty in their lives. They like to know where they stand and what will happen in any number of scenarios. A prenuptial agreement provides clarity for couples in a relationship around how their assets will be divided if there is a breakdown in that relationship.

Some of the reasons why people like prenuptials are:

• They protect inheritance or specific assets.
• They stop suspicion about why someone is entering into a marriage.
• Insuring inherited money, assets or savings stay with one or other partner.
• Empowering couples. You get a say in how assets will be split if you decide to divorce so everyone is clear.
• Allowing one partner to keep control of business ownership if needed.
• Protection from debt.

Should I Have a Prenuptial Agreement?

If you have substantial assets and want to gain some reassurance and clarity about how those will be treated should a relationship break down further along the line, you should consider entering into a prenuptial agreement (often called a prenup). This is usually sorted out before you get married if you want to sort out how property and finances will be dealt with during your marriage, and what will happen to them if you get divorced.

They are not just for a marriage scenario. If you are entering into a civil partnership, you can still get the same levels of reassurance by having a pre-registration agreement drawn up.

It is a good idea to discuss your rational for a prenuptial agreement with your partner before entering into one or insisting on one. The reason for this whilst a prenup can help you to protect your, or your spouse’s, wealth in the event of a divorce and offer some certainty in circumstances where you would prefer to agree in advance the distribution of your assets on divorce they can be seen as indicating a lack of trust if not handled in the right way.

What are the Contents of a Prenuptial Agreement?

Prenuptial agreements are not a generic document. The assets held by an individual or couple ten to differ considerably from situation to situation. What you choose to include in the agreement are up to you and your partner. It is a bespoke agreement where you put in place the agreement to protect a range of your assets.

A prenup usually list the assets that both parties hold and then gives the details on how you wish for them to be looked after during the marriage and how they will be split if that marriage break down. Alongside the assets and property etc that you want to be included, you should also include details of any assets you would prefer not to be included in the agreement. That is often as an important a consideration as what should be included.

The contents of a prenuptial agreement will often cover:

• All of the property held in by both parties.
• Savings and sums held in bank accounts.
• Any inheritance monies.
• Premium bonds or share certificates.
• Pension funds.
• Other income from outside sources.
• Business interests etc.

When agreeing a prenuptial agreement part of the process it to decide how assets and financial investments are split, not split and what sort of proportions go to which partner.

What Does a Prenup Not Include?

A prenup agreement can address a wide range of assets but there are rules over what can and can’t be included in the agreement. These rules are there to stop the prenuptial agreement clashing with existing legislation or where personal freedoms are breached. If you don’t abide by these restrictions you risk your agreement being considered as non-binding by the court.

The areas that are outside the remit of an agreement include:

• Child custody.
• Religious upbringing & schooling choices.
• Child support matters.
• Personal matters that may breach individual liberties.
• Illegal or unfair matters.
• Lifestyle choices or matters.

Financial Protections in a Prenup

Pensions: For those individuals who are marrying for a second time or, perhaps, later in life and don’t want to risk losing a large chunk of their pension in a divorce settlement will be pleased to know you can protect your pension with a prenuptial agreement.

Future earnings: In a similar way to a clean break financial agreement in a divorce settlement, if you want to protect any future earnings within your prenuptial agreement, you can address this with a suitably worded clause.

Are Prenuptial Agreements Permanent?

A prenuptial agreement is designed to run as a parallel contract to your marriage and so will last as long as your marriage lasts.

Are Prenuptial Agreements Legally Binding?

A prenup in UK law is not automatically legally binding but will be upheld by a court so long as it meets qualifying criteria. They are definitely becoming more and more accepted by the courts as proof of a couple’s intentions should they wish to divorce in the future.

The Law Commission published, in 2014, its report “Matrimonial Property, Needs and Agreements” which recommends that for prenuptial agreements to be enforceable, certain requirements must be met:

• The agreement must not have been made within 28 days immediately before the marriage or civil partnership.
• Both parties must have received legal advice at the time that the agreement was formed.
• 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.
• 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.
• The agreement must be made by deed and contain a statement signed by both parties that they understand it is enforceable and will partially remove the court’s discretion to make financial orders.
• 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.
• The terms of the agreement must not prejudice the reasonable requirements of children.

Are Prenuptial Agreements Effective?

To an extent a prenuptial agreement is as effective as the drafting and abiding with the rules that apply to the agreements. As we have already stated, the agreements are becoming more accepted by the legal fraternity.

There have been various landmark legal cases which have opened up the ability of the Courts to deal with prenuptial agreements, and in a 2010 in a ground-breaking case (Radmacher V Granatino) the Supreme Court said that, amongst other things, provided each person has a full appreciation of the implications of the agreement, then the Court should give effect to those agreements unless it would be unfair. These principles are more or less identical to the principles applied in most divorce financial settlements.

Can a Prenuptial Agreement be Modified?

A prenuptial agreement cannot be modified once it’s been agreed. Once you are married a postnuptial agreement is a great alternative. This is treated in the same way legally as prenuptial agreements but it is created after marriage.

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