Everything you need to know about prenuptial agreements
Venue, tick. Wedding dress, tick. DJ, tick. Pre-nup, huh?
It’s a fact, people are waiting until they are older to get married. There has been a continued overall rise recorded since the 1970s, with 2014 figures showing the average age for men marrying was 37 and for women, 34.
In addition, around 40% of all weddings in the UK are second or subsequent marriages, that’s approximately 100,000 people every year.
These statistics mean the likelihood of having acquired assets you want to protect when you get married, (a house, car, savings account, pension or even children from a previous relationship), has also increased.
Not surprising then that the number of couples adding ‘get a prenuptial agreement’ to their pre-wedding checklist is on the rise too.
What is a Prenuptial Agreement?
Prenuptial agreement, pre-nup, premarital agreement – all these terms refer to a marriage contract that sets out what will happen to your belongings, (including money, assets and property), should the marriage breakdown.
This formal, written agreement is set out between two partners prior to their marriage (there is a similar agreement called a post-nup if you’re already married).
Did you know?
1) Pre-nups are not legally binding, but can be upheld
Recent case law has shown that judges are prepared to give pre-nups substantial weight, and will uphold them on the condition that certain precautionary steps were taken when the agreement was drawn up and signed.
A significant precedent was set in the 2010 ground-breaking case of Radmacher v. Granatino. Mr Granatino was initially awarded £5.8 million of Miss Radmacher’s personal wealth, despite a signed prenuptial agreement which stated neither party would benefit financially if the marriage ended.
Following an appeal by Miss Radmacher, this amount was revised to £3.6 million (with £2.5 million being a loan to be re-paid once their children turned 18). The appeal judge said he believed it had become “increasingly unrealistic” for courts to disregard pre-nups…
“It does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement.”
2) A Prenup checklist helps to ensure your agreement follows through
The court will look at a variety of factors when deciding if the prenuptial agreement is fair. These include: whether both parties understood it properly, that they had enough time to review it before signing and the capacity of the weaker party to have said no at the time.
To help your agreement have the best chance of being upheld in divorce court, we’ve put together this prenup checklist:
- Ensure the pre-nup is compliant with UK law by having it drawn up by a qualified solicitor
- Avoid any claim of conflict of interest by ensuring both parties receive independent legal advice from separate solicitors
- Ensure both parties fully understand the agreement and voluntarily agree to it
- Get both solicitors to confirm it was entered into freely and knowingly
- Sign the prenuptial agreement at least 21 days before the marriage
- Ensure both parties disclose all their assets and property
The agreement may be disregarded by the court if there has been a significant change which would make the agreement inappropriate (for example, the birth of children, disability, loss of employment, etc.). It’s therefore a good idea to review your agreement periodically.
3) There are many reasons why you might need a pre-nup
Money can be a sensitive topic, especially in a relationship. A pre-nup provides a clear agreement on what the expectations are, and this can lead to peace of mind for both parties.
You may consider getting a prenuptial agreement for the following reasons:
- There are assets and/or property that would be hard to split 50/50
- You, and/or your partner, have children from a previous relationship and want to ensure certain assets are reserved for them and protect their inheritance rights (It is also crucial to make a Will)
- You want to protect inherited money or assets
- You want to safeguard substantial savings or expected future inheritance
- You want some say in how financial issues would be resolved in the event of a marriage breakdown (especially if you’ve suffered unfairness in divorce court previously)
- Either party own a business which they’d like to retain control of
- If your partner has outstanding debt, a prenuptial agreement with a ‘debt clause’ can protect you from being liable for the debt
4) Pre-nups are tailored to you
Prenuptial agreements are custom-made, and what’s included depends on a couple’s circumstances. Typically, they contain a list of each partner’s assets and details of how they are to be divided should the marriage end.
They can also include post-divorce financial arrangements for children. Courts pay close attention to any matters relating to children, and are unlikely to support any terms in the agreement that are deemed to be harmful to the interests of a child.
5) Without one, assets are usually divided equally
Without a prenuptial agreement, property and assets will generally be divided equally between both parties. This is because in the UK, the court sees the couple’s respective roles as “economic provider and child carer/homemaker as of equal value to the welfare of the family”.
While generally this is a fair distribution of assets, there are circumstances (such as the reasons listed above) which do not merit a 50/50 and the assets will be divided in unequal portions.
6) You should both save a copy
Once you and your partner are happy with the prenuptial agreement, it is drawn up for you both to sign. Ideally you then get married and never think about it again.
However, if disputes occur it can be useful for you both to have a copy to refer to. If divorce proceedings are undertaken then the agreement can be produced to be considered by the courts.
How We Can Help
While prenuptial agreements are now enforceable in the UK, they can still be overwritten or even thrown out of court.
At Osborne Morris & Morgan, we provide skilled advice on steps you can take to reduce the possibility of costly arguments over property and other assets if your relationship does not work out.
For £79 + VAT we can offer you an initial consultation to provide preliminary guidance to enable you to decide on the best way forward.