While once thought to be needed by only the rich and famous among us, pre-nuptial agreements (prenups) are becoming increasingly common in England (different rules govern Northern Ireland and Scotland). We’ve gathered here together the seven top questions lawyers are asked about prenups to help you see if it’s the right thing for you.
1. What is the meaning of a prenup?
A pre-nuptial agreement, or prenup, is an agreement entered into by a couple - preferably in good time before a marriage - which sets out how assets will be divided if they divorce or the marriage is dissolved. We hope they are never needed but they are there if the marriage ends.
It can be used to ‘ringfence’ any assets that one or both of them are bringing to the marriage, or that they may inherit during the marriage. Ideally, it’s quite a flexible document, dealing with how the impact of children, changes in employment or illness may affect the couple’s finances over the years, as we include provision for review.
2. Are such prenup agreements binding?
As the law currently stands, prenups aren’t automatically binding. However, the courts are increasingly holding divorcing couples to these agreements. The outcome has to be fair and both parties should have had legal advice and there should have been full disclosure of assets. They should be entered into in advance of the wedding, to give both parties sufficient time to consider and reflect on the terms of the agreement. It is important that they are entered into freely and not as a result of pressure – “if you don’t sign I wont marry you” can lead to the agreement not being upheld!
It is also important they are fair – which will be judged at the time of the breakdown of the marriage and therefore reviews are important to reconsider the position if there are, for example, children born.
3. Is it common for people to have prenups?
Since the landmark case of Radmacher v Granatino in 2010, in which the court ruled for the first time that a prenup will be upheld unless one person can show why it shouldn’t be, prenups have become increasingly more common and popular.
We at Clarion have certainly noticed a rise in instructions, with many clients seeking to enter into them. Whilst not the most romantic of documents, it is sensible to think about what should happen if the marriage was to end – and this is often easier to do in happy times!
4. What will my parents think?
The reality of the situation is that it’s often parents who are the driving force behind any prenup, as they are often anxious to ensure that any assets they pass on will be protected, especially if there is a family business or trust to protect. We are aware though that it is often a hard topic to raise!
Sometimes we find it is the parents who are the ones who suggest these documents – this doesn’t mean they don’t like their future son-in-law or daughter-in-law and it certainly does not mean they think the marriage is doomed to fail.
5. When shall I raise it with my partner and how?
If you are the one asking for a prenup, you should ideally raise it with them as early as you can, to give them plenty of time to get used to the idea.
Prenups have a greater chance of being binding if they’re signed at least 21 days before the wedding, so no one can allege they were forced to sign under duress. It’s definitely better not to leave it to the week before the wedding, when there will be plenty of other stressful things to deal with.
Raising the issue of the prenup with your partner may not be as much of a big deal as it once were, particularly as they have become more common and more discussed within our culture. Given that the divorce rate is currently 42 per cent, most people can point to at least one couple who split acrimoniously and whose divorce took a real financial and emotional toll on them, which a pre-nup can help guard against.
It also gives you the chance to make sure you’re both on the same page regarding your future together – you can talk through your plans for children, how you will care for them, and what would happen if either of you struggled with long-term unemployment or ill-health. It’s far better to test out how you both feel about these sorts of issues before you commit to each other, rather than afterwards, and to do so in happy times.
The prenup can act as an insurance policy you can file away and hope you will never need, but knowing that it’s there – just in case – could bring some comfort.
6. What should you do if your partner asks you to sign a prenup?
The first thing you should do is consult a solicitor and make sure you are being properly advised. Don't be afraid to ask your solicitor to negotiate a fair deal for you. The prenup preparation offers you a good opportunity to understand exactly where you stand financially and what you might be able to expect should you get divorced. Going through a divorce is such a stressful time and if you therefore have the financial certainty of knowing what the financial settlement will be, that must be a good thing during a really hard process?
7. What do I do next?
Whether you, or someone you know is, considering asking a partner for a prenup, or have been asked to sign one, you should consult an experienced family lawyer and find out in detail the meaning and implications of a prenup for you. You can find out more about our Family Team on their webpage.
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