The Ultimate Guide To Prenuptial Agreements
Prenuptial agreements may seem like an ‘unromantic’ option to think of before you get married, however, when you consider that 42% of marriages now end in divorce, it would be very wise of you to at least consider the possibility of one.
To help you make a more informed decision on this topic, we have provided a few of the most frequently asked questions that we get asked. If you would like an answer to a question that isn’t on this list or you need more personal advice for your situation, please submit your question here and we will be able help you.
Frequently Asked Questions On Pre-Nuptial Agreements
- Should I have a Pre-Nuptial Agreement if I am getting married?
- I have heard Pre-Nuptial Agreements are not legally enforceable in England and Wales. Is this true?
- When should I start thinking of entering into a Pre-Nuptial Agreement?
- We don’t own very much – Do we require a Pre-Nuptial Agreement?
- What should a Pre-Nuptial Agreement cover?
- It seems very ‘unromantic’ to make provisions for the breakup of my marriage. How could I go about raising this subject with my partner?
- Will I need a Solicitor to make a Pre-Nuptial Agreement?
- Can we use the same Solicitor to save costs on our pre-nuptial agreement?
- How much will a Pre-Nuptial Agreement cost?
- Does our Pre-Nuptial Agreement need to be reviewed after a certain period?
- If my partner and I break up, will the Pre-Nuptial Agreement come into effect?
- Are there any other legal matters I should think about before getting married?
Should I have a Pre-Nuptial Agreement if I am getting married?
I would always recommend that you consider having a Pre-Nuptial Agreement particularly where you are entering in to a second relationship having been through a previous relationship that has ended up in divorce.
You may have experienced an unhappy divorce and that experience will influence the way in which you would want any future separation to be dealt with. It is particularly important for example if you bring assets/resources into the new marriage and you feel that potentially an injustice may occur if those assets are ultimately or subsequently used by your spouse in any divorce situation to benefit them.
A Pre-Nuptial for example allows you to ring fence such assets and protect them from being brought into the capital pot for division.
I have heard Pre-Nuptial Agreements are not legally enforceable in England and Wales. Is this true?
It is important to point out that at the present time, a pre-nuptial agreement is not legally binding in England and Wales. This means that by signing up to one, you cannot exclude the court’s ability to decide how your finances should be arranged on a divorce.
However, when considering an application for a financial order as a result of the divorce, the court must give appropriate weight to a pre-nuptial agreement as a relevant circumstance of the case. There are certain formal steps that need to be followed to ensure the court will give appropriate weight to your agreement. If you’re in doubt, please ask.
When should I start thinking of entering into a Pre-Nuptial Agreement?
You should take advice from your solicitor about the advantages and disadvantages of having a Pre-Nuptial Agreement as soon as you possibly can after the engagement is announced.
Certainly I would recommend that the Agreement should be signed off at least 6 weeks prior to the wedding. The simple reason for that is that if you end up signing it the day before the wedding and it ends up being challenged at the time of the divorce, the court might decide that one of you was pressured into signing it which suggests an unfairness resulting in the court not upholding it.
We don’t own very much – Do we require a Pre-Nuptial Agreement?
I would normally recommend consideration of a Pre-Nuptial Agreement where you already have pre-acquired assets.
If you and your partner are entering into a marriage and neither of you is bringing any assets into that marriage then, unless there are other reasons why you would want an agreement prior to your marriage, I would conclude that it is not going to be of much benefit to you to enter into a Pre-Nuptial Agreement.
Other reasons include, for example, to protect future inheritances and ring fence that cash from any sharing principle in the unfortunate event of a divorce. The best advice I can give is to consult your solicitor to see whether or not a Pre-Nuptial Agreement would be the right thing for you.
What should a Pre-Nuptial Agreement cover?
Usually a Pre-Nuptial Agreement covers issues concerning finance. For example, if you are bringing property into the marriage do you want to ring fence that property and treat it as separate? If you are acquiring property together do you want to own that property equally or unequally? In the unfortunate event of divorce do you want to achieve a clean break on divorce or do you envisage a situation where you will either be paying or receiving ongoing spousal support?
The Pre-Nup can cover a whole host of different situations and the beauty of them is that they are tailor made to suit your particular needs and requirements.
It seems very ‘unromantic’ to make provisions for the breakup of my marriage. How could I go about raising this subject with my partner?
If you have been through divorce previously you will find raiding the issue of a Pre-Nup easier to manage. In every Pre-Nuptial that I draft I make it clear from the outset that the purpose of the Agreement is to promote and encourage the marriage rather than to facilitate its breakdown.
There is also provision for you and your spouse to endorse and agree the joint aspiration for the marriage to continue and endure for the rest of your joint lives and it is only in the event that those hopes are not fulfilled and the permanent breakdown of the marriage occurs that recourse to the Agreement is made.
It may be rather an unromantic notion, but those of you who have been through divorce once will consider it pragmatic, practical and sensible.
The advice I give to clients is think with your head, not with your heart and wear your metaphorical business hat at the time have your discussion.
Will I need a Solicitor to make a Pre-Nuptial Agreement?
Yes, you will.
The simple reality is that if you or your partner enters into a Pre-Nuptial Agreement without the benefit of separate legal advice and the Agreement is subsequently challenged by one of you, the court may well hold that it is not “fair” because of a failure to take independent legal advice.
Think of it as an insurance policy the cost of which is rather like paying an insurance premium to protect you in the event of something going wrong.
Can we use the same Solicitor to save costs on our pre-nuptial agreement?
It is imperative that you each access separate legal advice otherwise as stated above the court might subsequently hold that the Agreement is not “fair”.
What normally happens is that the lead solicitor prepares the Agreement and sends it to the other party’s solicitor for approval.
Most solicitors would provide an estimate of fees for either the preparation or the approval of the document so that you can budget in advance for the cost that you will incur.
How much will a Pre-Nuptial Agreement cost?
The cost will be dictated to by complexity.
If the Agreement is simple and straight forward then the cost will reflect that. I normally estimate that to prepare a fairly straight forward Agreement including attending a client from the outset to to it being signed off will cost about £1500.
Does our Pre-Nuptial Agreement need to be reviewed after a certain period?
Normally there is inbuilt into the Agreement a review clause after a certain period of time. My recommendation is that Agreements should be reviewed every 5 years.
If my partner and I break up, will the Pre-Nuptial Agreement come into effect?
At the present time a Pre-Nuptial Agreement is not legally binding in England and Wales.
This means that by entering into a Pre-Nuptial Agreement you cannot override the court’s ability to decide how your finances should be divided on a divorce. However, when considering an application for a financial remedy on divorce the court must give appropriate weight to a Pre-Nuptial Agreement as a relevant circumstance of the case.
Provided certain conditions are met and that the agreement reached is fair having regard to all of the circumstances of the case consistently the courts are holding parties to the terms of their Pre-Nuptial Agreement nowadays.
Are there any other legal matters I should think about before getting married?
Yes, you should think about making a new Will because upon marriage, except in fairly narrowly defined circumstances, any existing Will that you have is automatically cancelled. Ask me about my Will writing service.