Why Should You Consider A Prenuptial Agreement If You're Getting Married?


The Law of… Arranging A Prenup

With the New Year upon us, many engaged couples will be starting preparations for their big day. Wedding planning is an exciting and busy time where thoughts of divorce or separation could not be further from couples' minds.

It is important to remember, however, that in legal terms once you're married all of your assets become matrimonial assets. If you decide to separate or divorce and you do not have a prenuptial agreement in place (known as a prenup), the courts will make a decision about how your wealth should be split.

To protect and establish control over your assets in the event of separation, we strongly advise couples to consider entering into a prenup.

Family Law Associate Jane Auty offers advice on how a prenuptial agreement can protect you.

What Is A Prenup?

A prenuptial agreement is a written document that is created before a couple gets married. It's important to remember that every prenup is different; they are drafted to fit your personal circumstances. If you're entering into a civil partnership, you can make a pre-civil partnership agreement.

A prenup states how the financial assets and income should be split in the event that you get divorced. It establishes your rights to all of your possessions that were brought into the marriage or acquired individually.

The prenup can also include information about how you would deal with a change in circumstances during your marriage. For example, this could include what would happen in the event of illness, loss of income, children born in the future, and the acquisition of future assets.

Are Prenups Legally Binding?

Whilst the law in England and Wales does not currently recognise prenuptial agreements as formally legally binding, following the case of Radmacher v Granatino the courts must now support the terms of all prenuptial agreements unless the conditions are deemed to be unfair.

When looking at prenups, the court will generally take into account the following:

  • When making your prenup, did either you or your partner get independent legal advice?
  • Was pressure placed on you or your partner in an attempt to make you sign the agreement?
  • Did you and your partner offer financial disclosure of your assets?
  • Did the person who had the most to lose out on understand the terms of the prenup?
  • Would it be unfair if the prenup was upheld?

The practical reality of this all means that, providing the terms of your agreement are reasonable and have been entered into appropriately, it can be enforced by law in England and Wales.

Why Should I Consider Getting A Prenup?

If you do not have a prenup in place, the courts have the discretion to decide how your marital assets must be divided.

Prenuptial agreements can:

  • Provide clarity and control of your assets during divorce
  • Reduce conflict
  • Safeguard your financial stability
  • Protect your children's future

It is strongly recommended to consider entering into a prenup if you answer yes to any of the following:

  • Is this your first marriage and are you worried about your finances if it doesn't work out?
  • If you're getting married for the second time, would you like to protect the financial settlement you got from your previous marriage?
  • During your working life, have you gained a significant amount of wealth that you would like to leave to your children?
  • Are you worried about going through a long court dispute over your assets if your marriage was to end?
  • Would you like to protect your assets if you're a widower and are getting married?
  • Do you have a high earning capacity and would you like to cap maintenance provisos, which could be made to your partner if you were to get divorced?

How Can I Get A Prenup And How Much Will It Cost?

To make sure that you and your partner fully understand the terms of the agreement, you will both have to get independent legal advice from a specialist Family Law solicitor.

It's important that you both also provide full disclosure of your financial positions before making the prenup.

Prenups can cost anything from £1,000 and upwards, depending on how complex your agreement is and the length of any negotiations. The law commission recommends that agreements should be entered into at least 28 days before the wedding. This is to avoid a situation arising where one member of the couple claims they made the agreement under duress.

How Can Simpson Millar Help Me?

Our Family lawyers, including prenuptial expert Jane Auty, can offer you personalised advice and help with creating an agreement that meets your needs. We can make sure that your agreement is prepared correctly to ensure it will supported and upheld in court.

If you are not sure whether a prenuptial agreement would be appropriate for you, our Family Law solicitors will be happy to offer you some advice – speak to us on 0345 357 9000.

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