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Prenuptial Agreements UK – What you need to know

Prenuptial agreements are not high on the list of priorities for many newly engaged couples. The excitement (and stress) that ensues from the moment one of you gets down on one knee, right up until the ‘big day’, often doesn’t leave much room for, let’s be honest, pretty unromantic legal discussions about who would be entitled to what, should your relationship break up in the future.

Many people would say that those who research prenuptial agreement are cynical, that you should go into a marriage believing with all of your heart that this relationship will be the one that lasts for the rest of your life.

Whilst this is true, it’s important to understand that, as well as a way to show your other half and the world how much you love each other, marriage is also, in reality, a type of legal contract.

In essence, when you marry your other half, you are tying yourself to them, not just on an emotional level but also on a financial one.

 

What exactly is a prenuptial agreement?

A prenuptial agreement is a contract that is entered into before you get married (post-nuptial agreements are also possible for those who are already married), which sets out what you want to happen to yours and your other half’s assets, if your marriage doesn’t work and you need to get a divorce.

Prenuptial agreements are more well-known for being entered into by the very wealthy, especially when one party brings more money into a marriage than the other.

Some argue that prenuptial agreements should be entered into by anyone who is getting married or entering into a civil partnership.

prenuptial agreement

 

Why consider a prenuptial agreement?

There aren’t many people who go into a marriage believing that it may, in the end, break down. In the initial stages of a relationship, your rose-tinted spectacles are often stuck firmly in front of your eyes, making your other half seem the most wonderful person in the world. And yes, he or she may be a perfectly wonderful, lovely, thoughtful person. But life has the habit of surprising us….best laid plans and all of those clichés.

Those rose-tinted glasses may fade over the years. They may even fall off altogether. You may spend the rest of your life with your other half or things may not go the way you’d hoped for and you may decide to go your separate ways.

As solicitors, we are often criticised for being cynical. And maybe we are, as many of our clients are going through a divorce when they come to us for help and advice. But none of us know what the future holds. We take out insurance on our homes and on our cars for that very reason. Many of us even take out life insurance, to ensure that our families are looked after, should the worst happen.

So why are so many of us afraid of even discussing prenups with our other halves? After all, our lives today may look very different to the ones we have in a year’s or even a decade’s time.

Although not necessarily the most romantic of conversations to have with your fiancée, coming to an agreement now, when you are both very much in love and on good terms, about how your finances should be dealt with if you ever decide to go your separate ways, is much more preferable to lengthy (and often costly) negotiations, with someone who you may no longer see eye to eye with.

 

What will happen to your finances if you divorce?

The financial aspect of a divorce is often the most difficult and time-consuming part of separating from your spouse.

We’re often bombarded in the press with stories of lengthy and costly divorces, involving celebrities or high net worth individuals. Many of us have heard the horror story of the divorce that takes years and ends up costing the couple most of their worldly goods, in order to come to any kind of agreement about what will happen to the little that is left.

In general, the divorce process itself is actually quite simple. It is usually the financial settlement that can be the gruelling part and it is this that these articles are often referring to.

Going to court to ask a judge to decide your financial settlement can be the most costly and time-consuming part of the process. Thankfully, this is relatively rare, as most couples do come to an agreement between themselves, either with the help of processes such as mediation or collaborative law, or without.

If you want to know how your finances may be split if you divorce, it’s important to speak to our expert divorce solicitors.

Having a prenuptial agreement in place stating what you both want to happen to your assets should you divorce, could help to make things that little bit more simple.

 

Is a prenuptial agreement legally binding?

Prenuptial agreements are not legally binding in England and Wales.

This means that even if you and your spouse enter into a prenuptial agreement, a judge does not have to enforce it. It’s important to understand that a court could decide that your financial settlement is going to look quite different to the one on your prenuptial agreement.

If you and your spouse have entered into your prenuptial agreement properly, the courts may be much more likely to enforce it, should you need them to do so in the future.

 

Deciding whether to enforce prenuptial agreements: what a judge may consider

There are certain factors that a judge may consider when deciding whether or not to uphold a prenuptial agreement, such as:

 

Has there been undue influence?

You and your spouse should enter into your prenuptial agreement without any duress or pressure to make the other sign. If a judge thinks that one of you has used your power over the other to encourage them to sign, a judge may not enforce your prenuptial agreement.

Full disclosure is essential

It is vital for each of you to undertake a full and frank disclosure of your finances to each other, before entering into your prenuptial agreement. Neglecting to do this could result in your prenuptial agreement being given less weight by a judge in the future.

Each of you should seek independent legal advice

Ensure that both you and your other half get legal advice from a different solicitor regarding your prenuptial agreement and the implications of entering into it. If either of you fail to do this, a judge could decide not to enforce your prenuptial agreement in the future.

It’s not a good idea to rush into a prenuptial agreement

It’s important to leave as much time as possible between starting the process of entering into your prenuptial agreement and your wedding. Here at Austin Kemp, we recommend our clients to allow at least 6 weeks to enter into a prenup, otherwise a judge could give your prenuptial agreement less weight in the future.

Ensure that your prenuptial agreement is fair

Prenuptial agreements should be fair to both parties. If a judge thinks that enforcing a prenuptial agreement is unfair, they may decide not to do so.

Do you have any children?

If a prenuptial agreement does not take into account the needs of any children involved, a judge may decide not to enforce it.

Change of circumstances

If your finances, when you separate, look very different to when you entered into your prenuptial agreement, a judge may decide to give your prenuptial agreement less weight or not enforce it altogether. It is possible to amend a prenuptial agreement to reflect any changes in circumstances (for example, children being born). Speak to a solicitor for more information.

 

In order to stand the best chance of your prenuptial agreement being upheld by a judge in the future, it is important that it is entered into correctly.

prenuptial agreement

 

Have you been asked to sign a prenuptial agreement?

Just because prenuptial agreements are not legally binding in England and Wales, it does not mean that entering into them should be taken lightly.

If you have been asked to sign a prenuptial agreement, it is important to seek legal advice from an experienced solicitor about its possible implications for your future and whether or not it is fair.

 

Talking about a prenuptial agreement (pre-nup)

Romantic candlelit dinner chat it is not, but a conversation about what will happen to your finances should you need to go your separate ways in the future is, some would argue, an essential one to have.

It can be helpful to think about it in another way. Right now, you love your other half very much and would not (we hope!) wish them any harm. You would not want to think of them very distressed by something. Although a divorce is never going to be easy, having a prenuptial agreement in place may help to make things run more smoothly, for both you and your other half and could even save on lots of unnecessary stress due to lengthy negotiations, as you have both already agreed what will happen to your finances should you ever divorce.

Some would say that it is cynical to have the ‘if we split up’ conversation surrounding prenups. But would those same people agree that it is cynical to have home insurance or insurance for our pets should they fall ill or have an accident?

By taking out home insurance, for example, we are in no way hoping that are house will burn down (or even thinking that it will happen) but we are ensuring that if it does happen, we will be prepared.

Similarly, talking about prenuptial agreements doesn’t mean that we feel we may split up with our partner. It is just ensuring that if you do decide to go your separate ways, you may be more prepared.

 

Legal advice and prenuptial agreements

As we mentioned above, it is essential to seek independent legal advice about your prenuptial agreement.

By ensuring that your prenuptial agreement is entered into correctly and with the right legal advice, you are giving it the best chance of standing up in court, should you ever need it to.

If you are not sure whether a prenuptial agreement is right for you, you could go and talk through your concerns with a solicitor. A good solicitor should be able to advise you of your options and talk to you about what your prenuptial agreement may look like.

Lastly, it is important to repeat that it is vital not to rush into a prenuptial agreement. Not leaving enough time for each of you to seek legal advice and fully consider the implications of what you are entering into, could make a judge less likely to enforce your prenuptial agreement in the future.

 

What exactly is a prenuptial agreement?

A prenuptial agreement, also known as a ‘prenup’, is an agreement that is made between a couple about what will happen to their assets, if their relationship should break down in the future.

It is worth noting that a prenuptial agreement is not legally binding in England and Wales. This means that a court does not have to enforce them. This is why it is so important to ensure that a prenup is entered into correctly. We will talk more about this below.

 

Court divorce battles are costly

A good solicitor should encourage couples, wherever possible, to only ask a court to decide their financial settlement as a last resort, after other methods, such as mediation or Collaborative Law, have been tried to no avail.

Asking a judge to decide a financial settlement can result in an expensive and time-consuming process.

In 2017, a couple was reported to have spent more than £800,000 on lawyers’ bills in their divorce battle.

A cautionary tale of why reaching an agreement before it’s necessary to head to court, is so important.

Could the outcome have been different if this couple had entered into a prenuptial agreement before they had married? It is extremely difficult to say, but it may have helped.

 

Prenuptial agreements should be entered into correctly

As mentioned above, a prenuptial agreement should be entered into correctly so that, should the relationship ever break down and a court is asked to decide the financial settlement upon divorce, the agreement stands the best chance possible of being enforced.

As well as each party receiving independent legal advice, both parties must enter into the agreement voluntarily (no undue influence), each party must fully disclose their finances to the other and the agreement must be fair to both parties.

 It is also essential to ensure that a prenuptial agreement is not rushed into. Not only can it be stressful to add it to the ‘to-do’ list just before the wedding, a judge could give a prenuptial agreement less weight if it was entered into in haste.

Finally, prenuptial agreements that are more flexible, so for example, include clauses that the agreement will be reviewed if circumstances change (such as having children), can help to make it more likely that a court will uphold the agreement.

 

Prenuptial agreements could help to save both money and time in the future

Although a difficult subject to bring up when a couple are just starting out, with the hope of spending the rest of their lives together, talking about what may happen if they were ever to go their separate ways can save a lot of stress, heartache and money in the future.

 

Top 6 Reasons for Prenuptial Agreements to fail!

Prenuptial agreements, often known as prenups, are not legally binding in England and Wales. Just because you have a prenup stating how you want your assets to be divided, should you and your spouse ever decide to divorce, this doesn’t mean that a court has to enforce it.

Indeed, if you do decide to go your separate ways, a court could conclude that your settlement will look very different to the one you have set out in your prenuptial agreement.  If not done properly, your prenuptial agreement is less likely to be enforced by a court.

Here are 6 factors that often cause a judge to give less weight to, or completely disregard, a prenuptial agreement:

 

(1) There has been undue influence

Both parties must enter into the prenuptial agreement voluntarily. If one person uses any power they have over the other person, to gain an unfair advantage, then a judge will not enforce the prenuptial agreement.

 

(2) No independent legal advice

Both you and your spouse should obtain independent legal advice on your prenuptial agreement. If you fail to do this, your spouse could say that they didn’t understand the implications of the agreement and so it should not be enforced.

 

(3) Lack of full disclosure

You must make sure that you fully disclose all of your finances to your spouse before entering into a prenuptial agreement. If you do not do this, your agreement could be given less weight if a judge is ever asked to decide your financial settlement after divorce.

 

(4) The prenuptial agreement was rushed

Ensure that you leave as much time as possible between starting to draft your prenuptial agreement and your wedding date. Ideally, we recommend that our clients leave at least 6 weeks. A judge could give less weight to a rushed prenuptial agreement.

 

(5) Change of circumstances

If your financial situation has changed significantly since you entered into your prenuptial agreement, a court will take this into consideration, when deciding whether or not to enforce your prenup. Other factors, such as your age at the time of entering into the agreement, could also be taken into account.

 

(6) The agreement is unfair

You must ensure that your agreement is fair to both you and your spouse. If a judge thinks that to enforce your agreement would be unfair, then they may choose not to enforce your prenup.

By ensuring that your prenuptial agreement is entered into correctly and with the right legal advice, you can give your prenuptial agreement the best chance of standing up in court, should you ever need it to.

 

The Pro’s and Con’s of entering into a Prenuptial Agreement

With wedding season fast approaching, engaged couples are all over England and Wales are spending their evenings and weekends finalising the finer details of their big day. But should you also consider entering into a prenuptial agreement? 

When things are so busy and the wedding is only a few small months away, it can be easy to get lost in the planning and push away dealing with any other issues until after the you’ve both said ‘I do’. This feeling is amplified even more when it comes to considering a prenuptial agreement, which many people feel doesn’t fit with the romance soon-to-be-married couples are often surrounded with.

But prenuptial agreements and romance are not, as many believe, mutually exclusive. In fact, these agreements, which may in the future significantly reduce the stress and strain of both our other half and ourselves, are quite the opposite.

 

What are the cons of entering into a prenuptial agreement? 

Some couples find that talks of ‘if and what’ could happen to their finances if they separate in the future can be quite stressful, especially before a wedding. This is why, should you decide to enter into a prenuptial agreement, it’s important to discuss and organise it well in advance. This allows time for honest and open discussions to take place between you and your partner, when you are not feeling the time-pressure of your imminent wedding. Indeed, if a judge feels like either you or your spouse was pressured into the agreement, especially if you entered into it only weeks before the wedding, they will choose not to uphold it. 

As it can be difficult to predict future circumstances, it’s important to regularly update your pre-nup (for example, if one of you gives up work to look after your children) so that it is still relevant.

 

What are the pros of entering into a prenuptial agreement? 

Although not something soon-to-be-married couples want to think about, people and situations change and marriages do end in divorce.  

Entering into a prenuptial agreement can provide peace of mind to both parties as to what would happen, in the (hopefully) unlikely scenario, where you both go your separate ways, especially if one or both of you are high net worth individuals. Contrary to popular belief, a prenuptial agreement does not mean that one party gets nothing. A court would not uphold an agreement that resulted in the basic financial needs of one party not being met.  

Although not currently enforceable in England and Wales, as long as a pre-nuptial agreement is entered into correctly and with the right legal advice, a prenuptial agreement should be given weight (or upheld) by a court, if they are asked to decide your finances upon divorce. 

By entering into a prenuptial agreement, you and your partner are able to agree in advance what you would like to happen if you should ever decide to split, potentially saving both money and time on stressful discussions in the future.

 

How can our expert divorce solicitors help you with your prenuptial agreement?

Our expert divorce solicitors can help you with a range of legal issues relating to prenuptial agreements, including:

 

Contact our expert divorce solicitors for prenuptial agreements advice

For more information call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

Our expert divorce solicitors offer a nationwide service. We have client meeting office facilities available, in order to have face-to-face client meetings / conferences as and when required in:

Leeds Office: Princes Exchange, Princes Square, Leeds, LS1 4BY

Wakefield Office: Market Walk, Wakefield, WF1 1QR

Halifax Office: Old Lane, Halifax, HX3 5WP

Huddersfield Office: Northumberland Street Huddersfield, HD1 1RL

Coventry Office: Warwick Road, Coventry, CV1 2DY

Canary Wharf Office: 25 Canada Square, Canary Wharf, London, E14 5LB

Please contact us for more details.

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25th October 2017

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