A prenuptial agreement (nicknamed a prenup) is a formal document containing an agreement between two people prior to their marriage.
It records all assets including, money, property, vehicles, business interests and documents how each item will be divided should the marriage end.
Why would you want a prenuptial agreement?
Prenuptial agreements are normally only ever considered if there is considerable wealth on either side. That said, it may be favoured by those that wish to have certainty prior to marriage, especially if either party has children from a previous marriage and wishes to preserve certain assets for them. Or, if one party is due to inherit a significant fortune, and wishes to retain the full use of said inheritance, if the parties were to divorce. A prenuptial agreement can also set out how the couple will deal with any personal debt either has prior to the marriage, so that the debt is not shared by both if the marriage ends.
Are they legally binding in the U.K?
The way the family courts approach pre-nuptial agreements has changed substantially since 2010. This is due to the case of Radmacher v Granatino, involving a German heiress and a French Investment banker. Prior to this case, the family courts did not recognise pre-nups. However, since then a prenuptial agreement can and will be considered within the principles set out in section 25 of the Matrimonial Causes Act 1973. So, whilst prenuptial agreements are still not automatically binding, they are definitely a persuasive piece of paper if deemed fair and just.
How to ensure that the document is worth its weight?
Prenuptial agreements can only be considered by the family court if the couple had fully understood the implications of the document and entered into said agreement voluntarily. There also needs to have been sufficient time assigned for the couple to have considered the documentation prior to signing it and this should not have been right before the couple were due to marry, (at least 21 days before is recommended). The couple would have also needed to both take independent legal advice and their solicitor would have needed to confirm that their respective client had entered into the agreement of their own free will. Finally, all assets must have been disclosed by the couple at the time of signing, otherwise the document cannot be relied upon.
What is usually included in a prenuptial agreement?
The document will record all the couple’s assets, and how they wish to deal with each asset on the breakdown of their marriage. It may also deal with the financial agreements for any child of the marriage.
What if we do not have a prenuptial agreement?
When a couple divorces, they usually enter into a financial consent order or enlist the help of the courts to agree the division of assets. In both scenarios, the family courts will apply the principles set out in section 25 of the Matrimonial Causes Act 1973. The overriding principle of the family court is to ensure that both parties’ needs are met and that of their children. The starting point of division and considered the fairest is equal division of all assets, if this also meets the needs of the children.
Does a prenuptial agreement take away all the pre marriage romance?
Some people prefer to wait and enter into a postnuptial agreement (postnup for short). One of the partners may not consider the topic particularly romantic in the early throes of their relationship and wish to broach the subject post marriage. This may work for some, however probably not for most. If one of the parties has strong reasons for wanting a prenuptial agreement, then waiting until after the marriage could end up being a flawed plan, especially as a postnuptial agreement is only ever enforceable if the couple both fully welcome the idea. No agreement, no post-nup!
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