No one ever goes into a marriage expecting it not to work, but it is an unfortunate fact that many do not. Separation and consequent divorce can be very stressful and emotional as well as often tricky from a logistical point of view. When a couple divorces, assets are split equally between both parties. However, this is not always the wish of the couple.
What is a prenuptial agreement?
A prenuptial agreement (often known as a ‘prenup’) is a contract between both parties that stipulates the division of certain (not necessarily all) assets and debts should the marriage end. In essence, it is an agreement that outlines who gets what on the unfortunate occasion of a marriage breaking up.
What is the purpose of a prenuptial agreement?
The purpose of a prenuptial agreement is generally greater for couples who have a disparity in wealth or are getting married later in life. When a couple makes a prenuptial contract, they decide who will get which assets to avoid any confusion if there is a divorce further down the line,
This does not mean, however, that you cannot make a prenup if you are not well off or getting married when you are older. Many people choose to make a prenuptial agreement to keep things easy, fair, and equal if their marriage, unfortunately, breaks down.
Why should I have a prenuptial agreement?
There are a few reasons why people decide to have a prenuptial agreement:
- If there is a great disparity of wealth between the couple, they may not wish to have all the assets split equally. A prenuptial agreement allows both parties to stipulate who gets what, creating a fair divide of the assets.
- If one of the parties is expecting to come into wealth in the future. A prenuptial agreement allows you to ringfence future earnings to ensure that you keep the money that you have earned.
- As we get older, we start to think about the assets that we will be leaving behind for our children when we die. As more and more people are getting married older, you might wish to protect the assets that you have set aside for your children so that they do not get divided with your spouse should you get divorced.
There may, of course, be other reasons why you might choose to write a prenuptial contract before your get married.
What should be included in prenuptial agreement?
When a prenuptial agreement is made, it is important that a full financial disclosure is made by both parties. This will give details about each person’s assets and debts. Other information that should be included in a prenuptial agreement include:
Clarity of marital and separate property
Marital property is a property that has been acquired through marriage – such as properties bought together. Separate property will normally be a property that was already owned before the marriage or inherited. It is often the case that marital property will be divided in the event of a divorce, whereas separate property not, if stipulated in the prenuptial agreement.
When a marriage ends sometimes the spouse can be eligible for financial support from the other. In some cases, a prenuptial agreement can be used to waive these payments (although it should be noted that a judge has the power to overrule these agreements).
When a couple gets divorced, often one party’s debt can be split between the two people – often putting their marital property at risk. A prenuptial agreement can be made that can limit your debt liability if you get divorced.
Inheritance for children
Many people use a prenuptial agreement to protect the inheritance of their children from a previous relationship.
Description of responsibilities
Prenuptial contracts can not only be used to provide details of what happens to assets at the end of a marriage, but they can also give details about each spouse’s marital responsibilities – such as who manages the couple’s finances, joint bank accounts and household expenses, as well as how disputes are dealt with.
A sunset clause in a prenuptial agreement essentially gives a date when the agreement will expire. This can help to make a marriage a happy and trusting one, giving security that the agreement will be voided after a certain amount of time.
What cannot be included in a prenup?
There are also several factors that cannot be included in a prenuptial agreement. These follow the rules of the land, so it is important that you check these before including them. If you do include them, it could invalidate your prenuptial contract. Some of the factors that cannot be included in the prenuptial contract include:
- A changing of child support payment circumstances. These payments are a right of the child, and not included in the contract between the two parents.
- Information relating to the custody of the child. If in dispute, this is to be decided by the court.
- Details about daily tasks or duties for either spouse.
What does a prenuptial agreement protect?
There are many things that a prenuptial agreement can protect. These include:
- Savings, retirement, or educational funds that were accrued before the marriage
- Property interests of any children from a previous marriage
- Spousal support obligations should the marriage end
- Each party’s finances
- Divisions of pre-owned property from before the marriage
- Protection from debts of the other party
- Ownership rights for disability policies in life insurance
How long does a prenuptial agreement last?
A prenuptial agreement will normally last for the length of the marriage. However, as stated above, it is possible to add a sunset clause into the agreement which will put a length of time on the agreement after which it will be voided.
Are prenuptial agreements legally binding in the UK?
Although prenuptial agreements are an important document during a divorce, they are not completely legally binding. When a divorce goes through the court, it is assumed that a prenuptial agreement has been made in good faith but will also look at the details of the contract and has the power to overrule them if they believe that it is necessary.
In other words, the court will take the details in the prenuptial agreement into consideration but can overrule them if they believe that it is best.
Are prenuptial agreements effective?
The idea of having a prenuptial agreement may not be a romantic one. It is, however, a practical one. It can ensure that both of you are protected, and, importantly, help to avoid further conflict if the time comes that you decide to get a divorce. The addition of a sunset clause is also another way to show that you trust your partner and not turn the marriage seemingly into a business transaction.
Can your prenuptial agreement be modified after your marriage?
It is not possible to change your prenuptial agreement after you have got married. However, it is sometimes the case that a couple’s circumstances change. If this has happened to you, you can (with the participation of both parties) have a postnuptial agreement that carries the same weighting as a prenuptial agreement.
How long before a wedding should a prenup be signed?
A prenuptial agreement with a full financial disclosure should be made and signed at least 28 days before the marriage.
When will the court refuse to enforce a prenuptial agreement?
A prenuptial agreement will be enforced in court if it is deemed to be fair. Three criteria will be used to determine whether a prenuptial agreement is enforced in the UK. These are:
- The agreement must have been freely entered into by both parties.
- Both parties must understand the implications of the agreement.
- It should be deemed to be fair according to the court.
How do I make a prenuptial agreement?
If you have decided to make a prenuptial agreement – or are considering making one – it should be made with a qualified family lawyer. You should both seek independent legal advice and have a full financial disclosure document. When you sign it, it is essential that you fully understand it and its implications, and fully agree with them.
What will a prenuptial agreement cost in the UK?
The price of a prenuptial agreement in the UK varies according to the couple, the amount of detail included in the agreement, and other circumstances around the process.
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Last reviewed on 11/07/23 by Alka Wood who is a Solicitor