A guide to prenuptial agreements

What is a prenup?

A prenup is short for a ‘prenuptial agreement’. It is a contractual document providing financial clarity for a couple who are about to marry or enter into civil partnership. 

A prenup sets out what should happen in the event that the marriage breaks down. It deals with possessions, property and other financial assets. We mostly hear about prenups when celebrity couples are going through divorce proceedings. However, prenups are something to be considered by everyone, not just those with celebrity status.

Why do I need a prenup?

Prenups are becoming increasingly popular as more people are marrying later in life and have therefore accumulated their own assets. A prenup enables individuals to protect and safeguard their assets prior to entering a new marriage or civil partnership. For those who have substantial assets, it is worth considering taking steps to protect those assets in the event of divorce or separation later down the line.

What needs to be considered?

Ideally, a prenup should not be made within the 28 days immediately before the wedding or civil partnership ceremony. This could show signs of duress or undue pressure to enter into the agreement. There are also formalities surrounding how the document should be formatted, signed and witnessed.

What can a prenup include?

A prenup can include the financial agreements between the couple. For example, you can detail what you would like to do with:

• joint assets such as the family home and bank accounts
• assets owned before the marriage
• inheritance assets
• gifts received during the marriage, and
• financial arrangements for your existing children

Are prenups legally binding?

Prenuptial agreements are not currently legally binding in England and Wales. However, the Supreme Court decision in the case of Radmacher v Granatino, delivered in 2010, states the court could give weight to a prenuptial agreement if the following conditions are met:

• Both parties take independent legal advice on the prenup agreement
• Both parties understand the implications of the agreement and its effects
• Both parties have given full financial disclosure to one another
• Neither party must be subjected to any kind of pressure or duress to sign the agreement

As well as satisfying the above conditions, a prenup is only likely to be upheld if the terms of the agreement are fair to all the parties involved, including any children. Therefore, if one party is in a dominant financial position, they cannot use the prenup as an opportunity to take unfair advantage.

Remember, it is important that both parties obtain independent legal advice. This will help to provide evidence that each party understands the nature of the agreement and its implications. 

Birkett Long’s specialist family and divorce lawyers can offer independent legal advice regarding prenuptial agreements. To discuss making a prenuptial agreement or to review a current prenuptial agreement, please contact one of our specialist family lawyers for a free, no obligation 15-minute conversation.