Making a prenuptial agreement, or prenup, can provide financial reassurance as well as protecting assets that you may have acquired before your marriage or any future inheritance you may receive. It can also ensure that other commitments are honoured, such as providing for children from a previous relationship.

A prenup is often thought of as being just for the rich and famous, however, it can offer considerable benefits to many couples. By discussing finances before marriage and being open and honest about the subject, disagreements later on can often be avoided. It also provides a level of certainty, meaning that both parties understand their position and know what is likely to happen in the event of a divorce or separation.

What is a prenup?

A prenup is a document signed by a couple before they get married setting out what will happen if the marriage does not work out.

Who needs a prenup?

A prenup is particularly useful when one party has more assets than the other or when there is a possibility that they will inherit a substantial sum of money during the marriage. If one party owns a business, it can also be used to try to shield it from any future divorce claims.

Where one party has children from a previous relationship, that party may be particularly keen to protect their wealth so that they can be sure that their children will continue to be provided for, should the marriage fail.

Without a prenup, the starting point for the courts in looking at the financial aspect of a divorce is to share wealth equally between the parties. There is also a risk that the divorce process could be more hostile and protracted with no prior agreement in place.

What to include in a prenup

In making a prenup, both parties must fully disclose their existing assets, liabilities and debts. The agreement should be tailored to the unique needs of a couple, but will often cover the following issues:

• How children will be provided for, to include children from previous relationships;
• What will happen to the family home in the event of a separation;
• How any other property will be dealt with, including property owned by one party before the marriage;
• How assets will be shared, to include division of money in bank accounts, investments and savings;
• Who will be responsible for debts, to include debts that are run up by one party;
• What will happen to money or other assets that are inherited by one party during the marriage.

Is a prenup legally binding?

While a prenup is not legally binding if it has been properly drafted the court will give it serious consideration.

When deciding whether to follow the terms of the prenup in making a financial order, a court will look for the following:

• The agreement has been drawn up by a qualified solicitor;
• Full disclosure of all of the parties’ assets was made;
• Both parties have taken independent legal advice before entering into the agreement;
• Their legal advisers can confirm that the agreement was entered into voluntarily and that the implications of signing the prenup were understood;
• The agreement should provide fairly for both parties so that their financial needs are met;
• It should not disadvantage any children involved;
• The document was signed at least 28 days before the marriage.

If the court is happy that these issues have been addressed then there is a good chance that it will take the terms of the prenup into account when making an order for the division of assets.

Can you sign a prenup after you are married?

If you are already married but you would like to enter into an agreement over financial issues you can do so. In this case, it would be referred to as a postnuptial agreement. An agreement can be amended during the marriage if both parties agree. In both of these cases, the same principles of fairness would apply, and again, independent legal advice should be taken by each party.

Can I draft my own prenup agreement?

While it is possible to draw up your own prenup, because of the court’s stringent requirements, you may find it hard to satisfy all the points and the court may be more open to allowing a challenge to the agreement where it has not been prepared by a legal professional.

The cost of a prenup is modest, and for the peace of mind it provides, it is an expense worth incurring. It will allow you to enter into your marriage on an open and honest basis and may reduce the likelihood of financial disagreements arising in the future.

Contact us

At Witan Solicitors, we are experienced in drawing up robust prenup agreements for clients to protect their assets and provide certainty and reassurance.

If you would like to discuss your options with an expert family lawyer, email us at info@witansolicitors.co.uk or fill in our contact form. We have offices in Birmingham, London and Northampton.