Who needs a prenup?

Prenuptial agreements, also known as prenups, have become increasingly popular in recent years as a way for couples to protect their assets and finances before getting married or in the event of a separation, be that due to death or divorce.

While prenuptial agreements are not yet legally binding in the UK, they are considered to be persuasive by the courts, meaning that if a couple does end up going their separate ways, the court will take the prenuptial agreement into consideration when making decisions about the division of assets. The court is therefore not bound by the terms of the prenup and can make its own judgement based on what is believed to be fair.

Prenups defined

A prenup is a contract between two parties that sets out the terms of a divorce or separation and can cover areas including how assets and property will be divided, the level of spousal maintenance, how any debts will be met, and what happens to any gifts or inheritances received during the marriage.

The purpose of a prenup is to protect the assets of both parties and provide a clear understanding of how they will be divided, which can help reduce conflict and stress during what are usually emotionally charged times. It is important to note that a prenuptial agreement must be entered into voluntarily by both parties, and each party must have the opportunity to seek independent legal advice before signing the agreement.

Overall, a prenuptial agreement can be a useful tool for couples who want to protect their assets and avoid potential conflicts in the event of a divorce or separation. Thanks to the media attention many receive, prenups are viewed by many as the preserve of the wealthy, but they can be a sensible approach for any couple where both parties want to protect individual assets and savings from becoming matrimonial assets, particularly if marrying later in life, or if they’ve been married before.

When a prenup comes in handy

If one party is already independently wealthy and there’s a disparity between what each party is entering into the relationship with, one will be disproportionally impacted should there be a divorce, and everything is split 50/50. A prenup provides the opportunity to protect any assets or savings that have been accrued before the couple met.

Similarly, if there is an expectation that one or other of the parties will become wealthy in future, a prenup can be used to ensure this is recognised and that wealth isn’t automatically shared equally. Examples where this might apply could be expected returns from investments, inheritance, or anticipated future career earnings.

Should one party own a business, this is also a significant asset that may be better left off the table in any divorce proceedings. Notwithstanding the potential monetary value, the implications for the future security of any employees mean including any business ownership within a prenup would perhaps be sensible.

If one or other party is entering into a relationship with children from a previous marriage, they may wish to ensure any inheritance they intend to leave goes to their children and is not automatically shared with any children their intended has from their previous relationships. With increasing numbers marrying or remarrying later in life, this is something that should be considered.

There are differences between judgements in different countries, so if marrying someone from overseas the divorce laws from their home country may differ from those in the UK. A prenup agreed by both parties that considers all relevant legal jurisdictions can provide valuable protection in the event relations turn sour.

Enforceability

There are certain circumstances where a prenuptial agreement may not be enforceable, such as if it was signed under duress or if it is deemed to be unfair or unreasonable. For a prenuptial agreement to be considered by the court, it must meet certain legal requirements. These requirements include:

Woman signing marriage contract, closeup

It’s important to note that while a prenuptial agreement may meet these requirements, it does not guarantee that it will be enforced by the court. The court will consider a variety of factors when determining whether to enforce the agreement, such as any significant change in circumstances since the agreement was signed or whether the agreement is in the best interests of any children involved, should that be relevant.

Things to consider

Various issues can arise when it comes to prenuptial agreements in the UK. For example, some people may be hesitant to bring up the topic of a prenup with their partner, as they worry that it may be seen as unromantic or may cause tension in the relationship. Additionally, there may be disagreements between the couple about what should be included in the prenup, which can lead to further complications.

One of the main concerns surrounding prenuptial agreements is the moral and ethical implications of planning for a potential divorce before a couple even gets married. Some argue that prenuptial agreements go against the spirit of marriage, which is meant to be a lifelong commitment. Others, however, argue that prenuptial agreements are a practical solution for protecting assets in the event of a divorce and that it is better to plan for the worst-case scenario rather than be caught off-guard.

Another concern is the impact that prenuptial agreements can have on a relationship in its infancy. Some people worry that discussing a prenuptial agreement can create tension and mistrust between partners and that it can be seen as a lack of faith in the relationship. The flip side of this argument is that discussing a prenuptial agreement can strengthen a relationship, as it forces couples to have difficult conversations about finances and their expectations for the future.

Prenuptial agreements can also involve significant time and money, with solicitors required to draft the documents, which can cost several thousands of pounds for both parties. Additionally, the process of negotiating and finalising a prenuptial agreement can take several weeks or months to conclude. Whether the cost and time involved in creating a prenup is a small price to pay for the peace of mind it provides is a point of much debate.

The verdict

Overall, prenuptial agreements can provide peace of mind for individuals entering a marriage, but they should not be relied upon as a guarantee of asset protection. Couples should also consider other options, such as postnuptial agreements and trusts, to ensure their assets are protected in the event of a divorce. If both parties fully understand the terms of the agreement and have received independent legal advice, a prenup can provide a clear and fair framework for how assets will be divided.

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Authored by

Andrew Leaitherland
Andrew Leaitherland Founder and CEO
Although Andrew is an employment lawyer by training, over the last fifteen years he has built up extensive experience in leading M&A activity with professional services firms including leading the listing of DWF Group plc on the main market of the London Stock Exchange. Andrew uses these skills to advise strategically on inorganic growth opportunities for all types of professional services businesses, in conjunction with other members of arch who support on the necessary legal work. Andrew is also the Chair of The Legal Director and a NED of Summize which gives him great insight into how the respective businesses can collaborate to further the interests of our clients.

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