What is a prenuptial agreement?

A prenuptial or premarital agreement (commonly known as a pre-nup) is a formal, written agreement between two partners prior to their marriage or civil partnership.

Whilst this may seem pessimistic to some, given the high rate of divorce in the UK, pre-nups are a sensible way to start off a marriage and allows partners to be open and honest with each other.

It sets out ownership of all their belongings (including money, assets and property) and explains how it will be divided in the event of the breakdown of their marriage/partnership.

Why get a prenuptial agreement?

Money can be an extremely sensitive topic in a relationship, especially if you have different attitudes towards spending and saving. A prenuptial agreement provides a clear agreement that can lead to peace of mind for both parties.

You might think about 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 for the same reason).
  • You want to protect your 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 courts previously)
  • Either party owns 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 that debt.

What should be included in a prenuptial agreement?

Every prenuptial agreement is tailored to a couple’s particular circumstances; however it will usually contain a list of each partner’s assets, and details of how they are to be dealt with in the event of a marriage breakdown.

It may also set out post-divorce financial arrangements for children, particularly where one or both partners already have children from previous relationships. The courts will pay particular 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.

What happens if you do not get a pre-nup?

In the UK, the courts view is any assets accumulated before the marriage may be treated as marital assets once the parties are wed.

This means that without a pre-nup, the starting point for the division of property and assets will generally be equality of assets between both parties.

While this is generally the fairest distribution of a couple’s assets, if any of the reasons for getting a pre-nup outlined above apply to you and your partner, then a 50/50 spilt may feel unfair.

Pre-nup Checklist

There are a number of factors which need to be in place when you enter into a prenuptial agreement.

As when considering if the agreement is fair and should be upheld, the court will look at factors such as whether both parties understood it properly and if they had enough time to review it before signing.

We have put together a checklist to help your prenuptial agreement have the best chance of being upheld in the divorce courts:-

  • The pre-nup agreement must be drawn up by a qualified solicitor.
  • Both parties should have separate solicitors to avoid any claim of conflict of interest.
  • Both parties must fully understand the agreement and willingly agree to it.
  • Solicitors/parties must confirm it was entered into freely and knowingly.
  • The prenuptial agreement should be signed at least 21 days before the marriage takes place.
  • All assets and property must be fully disclosed by both parties.

If you would like to know more, then please do not hesitate to contact the Family Team at Maxwell Hodge Solicitors on 0151 526 7131.