Guide to prenuptial agreements in England and Wales

    Guide to prenuptial agreements in England and Wales

    Are you considering a prenuptial agreement? According to a recent survey*, if you’re under 25, the answer is yes. Of the 136 respondents aged between 18 and 24 (‘Generation Z’), 42% of women and 36% of men said they would likely sign a prenup before they got married.

    What is a prenup?

    A couple planning to enter a marriage or civil partnership may decide to enter into an agreement that records what they intend to happen to their assets, or income, if the marriage were to later break down.

    The survey results may reflect the change in times, whereby couples are more open about their finances ahead of marriage than in previous years. It may also reflect the trend for later or second marriages, which may mean each brings different, sometimes substantial, financial resources into a marriage. The women’s survey results may also reflect that women now have very successful careers and assets of their own and may be the ‘breadwinner’ on entering a marriage.

    It may not be the most romantic conversation amongst the excitement of planning a wedding and your future but it could be one of the most important conversations you have.

    Are prenups legally binding in England and Wales?

    Prenuptial agreements are not automatically binding in the event of a divorce but the terms may be decisive in the event of a dispute that is dealt with by the court, unless the effect of the agreement would be unfair.

    Following the case of Radmacher v Granatino 2010, an agreement is more likely to be upheld if certain guidelines are followed:

    • Before signing the agreement, both parties received independent legal advice
    • The agreement was freely entered into
    • There was full financial disclosure at the time of creating the agreement
    • The agreement was signed at least 28 days before the wedding
    • The agreement is fair and mutually beneficial to both parties and children, if any

    Prenuptial agreements are complicated but, ultimately, may mean that your assets will be divided in a manner which you feel is fair if there is a later divorce.

    Can you get a prenuptial agreement after marriage?

    No, a prenuptial agreement is made before the marriage takes place. If you want to protect your assets and income after you are married, you can make a postnuptial agreement. The same guidelines as above must be followed.

    Can you make a prenuptial agreement without a lawyer?

    No, for an agreement to have the greatest chance of being upheld in court, both parties must have received independent legal advice on the contents within it.

    What happens if there is no prenup?

    You may not think that a prenup is for you. However, on divorce the starting position is that all assets fall into the ‘matrimonial pot’, regardless of whose name they are in, and the pot divided equally.

    Certain factors will impact on the outcome and mean that the starting point of equality is set aside but a prenup may avoid an expensive argument and bring certainty. The agreement could, for example, record that all pre-marital assets are ‘ring-fenced’ and so will not form part of the matrimonial pot. For instance, this could apply to a house in your sole name that you purchased before you had even met your spouse.

    Further, you may not think you have assets worthy of a prenup but have you thought about potential inheritance?

    If you know you are likely to receive a significant inheritance, again, the starting point is it will fall into the ‘matrimonial pot’ if received during the marriage. Your parents, long last aunt, or whoever you are benefiting from, may not want your spouse to also benefit. A prenup could record an intention to exclude such an inheritance.

    We're here for you

    If you are thinking of getting married and want to know whether a prenup is for you, contact one of our prenuptial agreement solicitors who will happily discuss matters with you.

    *Carried out by Stephensons.

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