Did you pop the question this Valentine’s Day? Congratulations, now is the perfect time to think about having a conversation about a prenuptial agreement with your partner. We can help you to draw up your agreement, should you choose to have one.
What is a prenuptial agreement?
A prenuptial agreement, or premarital agreement (commonly referred to as a prenup), is a written contract entered into by a couple prior to marriage or civil union that enables them to select and control many of the legal rights they acquire upon marrying, and what happens if the marriage ends by death or divorce.
It may seem unromantic but actually this is a modern, forward thinking way of entering into marriage. After all, getting married is a big decision and not one to be taken lightly.
The more open and honest you are with each other, the more likely it is that you will never need to use the prenup. However, for peace of mind for both of you, it makes sense to put an agreement in place.
Everyone is different but there are a variety of reasons for putting a prenuptial agreement in place such as:
– You’re bringing personal assets into the marriage
For example, one of you may have been given money by a parent or grandparent that you intend to put down as a deposit on the property you will both be living in together. A prenuptial agreement can ringfence that money so that in the event of a split you won’t lose the money your parents or grandparents worked so hard to save for you.
– There are assets or property that would be very hard to split 50/50
It may be that you are entering into a second marriage or your partner was previously married, and that one or both of you has property or assets that are connected to that previous relationship. In this example, it is best to be upfront and let your partner know what your previous circumstances were. Full financial disclosure will be required in order to enter into a prenuptial agreement.
– You may have children from a previous relationship and want to ensure that certain assets and their inheritance rights are protected
These days it is common for new couples to have children from a previous relationship, and you will probably want to make provision for them in the future.
– One or both of you may own a business which you would like to retain control of
If you’ve spent time and effort building up a business by yourself, it is natural to want to protect it in the event of your marriage coming to an end. This may seem a very negative viewpoint when you are on the cusp of entering into a marriage and everything feels very romantic and loving. However, all marriages do come to an end, whether that’s by separation or by death. It is sensible to plan ahead.
– Your future spouse may have outstanding debt; a prenuptial agreement with a ‘debt clause’ can protect you from being liable
Debt is a very difficult subject to discuss with your partner but we would strongly advise doing so, as it is much better in the long run to speak plainly about such things. Once you have had this conversation, you’ll both feel better for it and you’ll be able to go forward into your marriage confident that you’ve done everything you can to ensure the marriage starts from a place of open, honest communication.
Are prenuptial agreements legally binding?
It is important to note that prenuptial agreements are still not legally enforceable in England and Wales – for the time being at least.
However, following the landmark decision in the case of Radmacher v Granatino in October 2010, judges are attaching more weight to prenups and are more likely to uphold them, unless they are considered to be unfair at the time the parties get a divorce.
A prenuptial agreement is more likely to be upheld if:
- It is signed at least 21 days before the wedding day
- Its contents are reasonable
- It is clearly not out of date (providing for future children, for example, and preferably a review after a period of time)
- It was properly drafted by a family lawyer with both parties receiving independent legal advice and providing full financial disclosure.
What if we’re already married but want to sign an agreement?
If you are already married and want an agreement in place to define what will happen in the event of the marriage ending, then we advise considering a postnuptial agreement.
A postnuptial agreement effectively does the same things as a prenuptial agreement, except postnuptial agreements are signed after marriage has taken place. Alternatively, you may wish to consider a cohabitation agreement.
We fully understand that discussing prenuptial agreements with your future fiancé can be very tricky. However, we strongly believe that trust, commitment and communication are the three things that make a marriage go the distance. We’re here to support you in that endeavour.
