Prenup agreements used to be associated with the rich and famous but now they’re being widely used by people from all walks of life.
It’s easy to see why. More than four out of 10 marriages in the UK end in divorce, according to the latest available figures from the Office for National Statistics.
With those odds, it’s not surprising that each partner might want to protect their interests to ensure that they will get fair divorce settlement if the marriage ends.
The answer for a growing number of UK couples is to draw up a prenup.
What is a prenup?
A prenup, or a prenuptial agreement, to give its full name, is a legal contract agreed by a couple before they marry or enter into a civil partnership.
It sets out how their assets, finances, and other matters will be dealt with in the event of a divorce or separation.
In the United Kingdom, a prenup outlines the financial arrangements between the parties, including property, inheritances, savings, investments, and debts.
It aims to provide clarity and certainty in case the marriage or civil partnership ends, potentially avoiding lengthy and costly legal disputes.
What do prenups do?
The specifics of prenuptial agreements vary depending on individual circumstances and jurisdiction. However, the same basic concerns tend to appear in most prenups.
These are some of the more common areas covered.
Asset Division
One of the primary purposes of a prenuptial agreement is to address the division of assets. Couples often specify how property, investments, savings, and debts will be allocated in the event of divorce or separation.
They may outline the percentage or specific items each party will receive or define separate property, such as assets owned prior to the marriage, to be excluded from the marital estate.
Spousal Support
Many prenuptial agreements include provisions related to spousal support, also known as maintenance.
These clauses establish the amount, duration, and conditions for financial support in case of divorce.
They can range from waiving any spousal support to specifying a predetermined amount or a formula for calculation based on factors such as income disparity and the length of the marriage.
Business Interests
When one or both partners own a business, prenuptial agreements can address the treatment of business assets.
They may outline the division of ownership, control, and decision-making authority, especially if the business was established before the marriage. Such clauses help protect the interests and continuity of the business in the event of a divorce or separation.
Some businesses even specify that partners must enter into a prenup when they marry to prevent their spouse making a claim for part ownership in the event of a divorce.
Inheritance and Estate Planning
Prenups frequently address inheritance and estate planning matters. Couples may use these agreements to protect specific inheritances or family assets, ensuring they remain with the intended beneficiaries.
Such conditions can help safeguard family wealth and prevent disputes or unintended consequences in the event of a divorce or the death of a spouse.
Debts and Financial Obligations
Prenuptial agreements may include provisions that address the allocation of debts and financial obligations incurred during the marriage.
Couples can specify how debts will be divided or outline the responsibility of each spouse for their respective obligations. This approach can protect individuals from being saddled with their partner’s debts in case of divorce or separation.
Dispute Resolution
Some prenups include clauses related to dispute resolution mechanisms, specifying the process to be followed in case of conflicts.
Couples may choose to include arbitration or mediation provisions, requiring them to engage in alternative dispute resolution methods before resorting to litigation.
This promotes a more amicable and cost-effective approach to resolving differences.
Are prenups legal in the uk?
Prenups are indeed legal in the UK, but the real issue is to what extent are the agreements legally binding.
There is no law in the UK dictating that prenup agreements are legally binding and enforceable. However, over the last 10 years, courts have become increasingly likely to uphold them.
Each case will be decided on its individual merits, but certain principles have emerged from court rulings in several divorce cases.
When are prenups legally binding?
Courts in the UK have increasingly acknowledged the validity of prenuptial agreements in recent years, although they maintain discretion in applying the terms.
These are some of the main points judges will assess when deciding whether the prenup should be followed and accepted as legally binding.
Understanding the prenup
Courts will need to be confident that both spouses understood the prenup before signing it. Were they aware of all the implications and how it might affect them if the marriage broke down? If not, the agreement may not be upheld.
Legal advice
Did both partners receive independent legal advice to make sure their interests were protected and they understood what they were signing?
The involvement of a prenup lawyer or family law solicitor will help give the court confidence that the correct procedures were followed and each spouse understood the agreement.
It follows that if one spouse had legal advice and the other did not, the court might see that as an imbalance of power, which would cast doubt on the prenup’s validity.
Undue pressure to sign
If the court suspects that one partner was put under pressure to sign the prenup then there is a strong chance it will be declared invalid and ignored when assessing the divorce settlement.
Such undue influence and duress may take many forms and could be as simple as one spouse springing the idea on the other on the eve of the wedding when they haven’t got time to properly consider it or may be loathe to refuse to sign for fear of the marriage not going ahead at the last moment.
Fundamental fairness
For a prenup to be accepted by the courts, it will have to be fundamentally fair and take into account the needs of any children involved.
If it is perceived to be grossly unfair, a judge may decide that one spouse didn’t fully understand what they were signing, especially if they didn’t have any independent legal advice.
Landmark prenup court cases
There have been some key cases in the UK that have influenced the status of prenuptial agreements.
The first and most prominent was the landmark Supreme Court case of Radmacher v Granatino in 2010, which proved to be a significant turning point.
The court held that, while not automatically binding, properly executed prenuptial agreements should generally be upheld unless doing so would result in an injustice. This ruling set a precedent for greater recognition of prenuptial agreements in subsequent cases.
Since Radmacher v Granatino, courts have shown a willingness to uphold prenuptial agreements that meet the requirements of fairness and voluntary consent.
However, each case is evaluated on its individual merits, and there have been instances where prenuptial agreements have been disregarded or varied by the courts, particularly when they are deemed unfair or fail to consider the interests of any children involved.
Prenups pros and cons
There are pros and cons to prenups as with most things. These are some of main advantages and disadvantages.
It’s worth considering them carefully before drawing up a prenup or deciding what terms should be in an agreement.
Pros of prenuptial agreements
- Asset Protection: A prenup allows couples to define how their assets, including property, savings, and investments, will be divided, protecting individual wealth and safeguarding inheritances for children from previous relationships.
- Financial Certainty: Prenups provide clarity on financial expectations, reducing conflicts and potential legal battles in the event of a divorce or separation. They can help establish clear guidelines for spousal maintenance, ensuring a fair and predictable outcome.
- Protection for Business Owners: Prenuptial agreements are particularly beneficial for business owners, as they can address the treatment of business assets, ownership, and control, safeguarding the continuity and interests of the business in the event of a divorce.
Cons of Prenuptial Agreements
- Limited judicial discretion: While prenups are increasingly recognised and enforceable, UK courts still maintain discretion in assessing their fairness and ensuring they meet the needs of any children involved.
- Courts can set aside or vary a prenup if it is deemed unfair or fails to consider changing circumstances.
- Emotional Implications: Some argue that prenuptial agreements can create a sense of distrust and undermine the foundation of marriage. Discussing and negotiating financial terms in advance may introduce tension and strain into the relationship.
- Lack of Certainty: Prenups cannot account for unforeseen future circumstances or changes in financial situations. They may not cover aspects such as child custody or arrangements for children, which must be determined based on the best interests of the child at the time of separation.
What should a woman ask for in a prenup?
When a drawing up a prenup a woman will want to protect her interests in the same way as a man. She may be very wealthy while her fiancé is less well off, or she may earn a lot more; she may be the main breadwinner while her husband plans to stay home and look after the children.
The purpose of the question ‘what should a woman ask for in a prenup’ is more likely to be based on the reality that even if these days of equality, it is generally the woman who is the main child carer and the one more likely to sacrifice career opportunities for the sake of the children.
With that in mind, these are some points a woman might want to consider including in a prenup.
Financial Transparency and Disclosure
One of the crucial aspects of a prenuptial agreement is full financial transparency and disclosure.
Women should ensure that their future spouse provides a comprehensive overview of their financial situation, including assets, debts, income, and investments. This allows for a fair and informed negotiation process.
Protection of Individual Assets
Women should consider the protection of their individual assets when drafting a prenup. This includes any property, savings, investments, or inheritances they bring into the marriage.
Clearly outlining these assets and establishing their separate ownership in the agreement can help safeguard them in the event of a divorce or separation.
Business Interests
If a woman is a business owner or anticipates starting a business in the future, addressing this in the prenup is essential.
It may involve specifying the ownership, control, and division of business assets in case of divorce, ensuring the continuity and protection of the business.
Spousal Maintenance
Women should carefully consider spousal maintenance provisions in the prenup. While the courts retain discretion in this matter, establishing guidelines for financial support, if needed, can provide security and peace of mind.
Factors such as the duration, amount, and conditions for spousal maintenance should be clearly defined.
Children and Custody Arrangements
Although prenuptial agreements cannot dictate child custody or child support arrangements, it is essential to address how financial matters will be handled for the children in case of a divorce or separation.
This may involve establishing guidelines for child support, education, healthcare, and other related expenses.
Consideration of Changing Circumstances
A well-drafted prenuptial agreement should account for potential changes in circumstances over time.
This can be achieved by including provisions for reviewing and updating the agreement periodically or in specific situations, such as the birth of a child, significant changes in income, or the acquisition of substantial assets.
Value of prenup lawyers
Prenuptial agreements are becoming increasingly popular with married couples and are increasingly accepted by the courts.
Each prenup is unique and should be tailored to individual circumstances, taking into account the ever-evolving nature of relationships and the complexities of family dynamics.
By openly discussing and negotiating these conditions, couples can establish clear financial expectations and protect their interests, providing greater clarity and security in the event of a divorce or separation.
Prenups also need to be properly drawn up, which is why it’s sensible to seek independent advice from prenup lawyer or family law specialist.
This will not only help you create an agreement that is fair to both sides, but it’s also likely to ensure that it will be acceptable to the courts.
Prenups in other countries
Prenuptial agreements are treated differently in various jurisdictions worldwide. In the United States, prenups are generally recognised and enforceable, with each state having its own laws governing their validity.
Similarly, Australia acknowledges the enforceability of prenuptial agreements, provided they meet specific requirements and are deemed fair.
France takes a different approach, with a longstanding tradition of prenuptial agreements, known as “marriage contracts.”
French law requires couples to enter into these contracts before marriage, and they are considered legally binding.
The courts in France have less discretion to deviate from the terms of a prenuptial agreement unless they conflict with public policy or cause grave injustice.