If you are planning on marrying, you may be wondering if you need a prenuptial agreement, commonly referred to as a prenup.
We answer the following questions:
- What is a prenup?
- Will I benefit from a prenup?
- How can I protect an inheritance?
- Are prenups legally binding?
- What goes in a prenup?
- How much does a prenup cost?
- Should I sign a prenup?
Please note, the information in this blog should not be taken as legal advice. For specific help with any family law matters, please speak to one of our Family Law team by calling 01689 887887 or filling in our enquiry form.
A prenuptial agreement or prenup is a contract made between a couple before their marriage takes place. Prenuptials usually set out what will happen to the couple’s assets and liabilities in the event of a divorce.
A similar agreement is available for couples entering into a civil partnership, sometimes referred to as a pre-civil partnership agreement.
It is also open to you to enter into this type of agreement after you are married, which is known as a post-nuptial agreement also known as a postnup.
A prenup can be beneficial for a range of reasons. It allows you to enter into your marriage on an open and honest basis. Couples sometimes find that it helps with communication in respect of the tricky subject of money.
It can reduce the risk of misunderstanding and conflict upon divorce and it will generally make the process much quicker and easier as well as less contentious.
Prenups are not just for the wealthy, they are also useful in the following circumstances:
- Where one or both of you have children from a previous relationship and you wish to protect your assets to pass on to them
- Where you have business interests
- To protect other assets, such as property, savings and investments that you have built up before the marriage
- To protect inherited money
- To protect you from your partner’s debts, either pre-existing or debts that may be incurred in the future
A prenup can be particularly important if you have substantially more assets than your future spouse. Entering into a prenup gives you the best chance of safeguarding them in the event of a divorce.
You may be wondering how to protect an inheritance from being lost or shared on divorce. A prenup can set out how inherited money will be dealt with, to include both money you have already inherited and money that you may inherit in the future.
While prenups are not legally binding, if certain criteria are met, the court will usually follow the terms of a prenup if asked to make a financial order on divorce, unless it would be unfair to one party to do so. These conditions are:
- The agreement was drafted by a qualified lawyer
- Both parties made full financial disclosure to each other before signing
- Both parties had independent legal advice before signing
- The agreement was signed voluntarily and the contents and implications of signing were understood
- The agreement was signed at least 28 days before the marriage
- The agreement provided fairly for both parties
- The terms of the agreement do not disadvantage any children
It is up to you what you include in your prenup. As well as details of how you want your assets to be dealt with on divorce, you can also include how you will deal with your finances during your marriage. Common clauses in prenups include:
- What will happen to the property you live in together, to include who will pay the mortgage
- How your assets will be dealt with if you separate, to include those which you owned before the marriage and those that were acquired during the marriage
- Who will take responsibility for debts, both existing and built up during the marriage
- What will happen to inherited or non-matrimonial money and property
- Provisions for children, to include children that each of you may already have
The cost of a prenuptial agreement varies, depending on the complexity of your situation. If you would like to speak to one of our family law solicitors, we will be happy to discuss the potential cost of a prenup or advice on signing a prenup with you.
Whether or not a prenup is the right option for you will depend on your circumstances. You should not be pressured into signing and you should speak to a solicitor at length if you have been asked to sign a prenup.
If you divorce without a prenup in place, the court will take a range of circumstances into account in dividing your assets. The split will not always be 50:50. The court will look at the needs of each party and may give one of you more assets than the other if one of you is in a weaker financial position.
By way of example, if one of you has taken on the bulk of the childcare and has stopped working to do so or worked part-time and not made the career progression that might otherwise have been made, that person might receive a larger share of the matrimonial pot. This could include a share of the other party’s pension if the court felt that this was needed to make adequate future provision.
The court will prioritise the needs of any children involved. This means that the person with the day to day care of them may be allowed to stay in the family home, at least in the short term.
If you are undecided about whether a prenup would be beneficial, you should speak to a prenup solicitor who will be able to look at your situation and provide expert advice.
For information about our services, see our advice on prenuptial and postnuptial agreements page.
Speak to our family lawyers in Orpington, Kent about making a prenup
If you would like to talk to one of our family law solicitors, we would be happy to hear from you.
Our Family Law team has many years of experience in advising clients on prenups. We can work with you to establish what you would like to achieve from an agreement and ensure that your interests are safeguarded as far as possible.