Prenuptial Agreement
A prenuptial agreement (also known as a pre-nup) is an agreement that is entered into before a marriage takes place. The purpose of the agreement is to set out how property and assets are owned and how they will be divided should your marriage break down.
At Blackfords LLP, we have a dedicated team of experts who can advise you on creating or upholding a pre-nuptial agreement.
Whilst currently in the UK, pre-nuptial agreements are not legally binding, many couples find that having this agreement in place provides a sense of security and may help to protect assets.
Blackfords LLP: Expert Pre-Nuptial Agreement Solicitors
We provide expert legal guidance in drafting and reviewing pre-nuptial agreements. Our team will advise you as to whether the agreement is fair, robust and whether it may stand up to court scrutiny if necessary.
Our Solicitors can:
- Help draft a prenuptial agreement tailored to your situation,
- Negotiate the terms of the agreement to ensure that it is fair,
- Review an existing prenuptial agreement,
- Advise on the legal enforceability of the agreement,
- In cases where court is necessary, we can represent you to give you the best chances that the agreement is held up.
We can assist you with the process of crafting and entering into a pre-nuptial agreement. Please contact us here for further information. Alternatively, email info@blackfords.com or phone 03330 150 150.
How Courts Can Uphold a Prenup
A contractually sound agreement will carry weight in terms of the Divorce Court process. It is more likely to be upheld if a pre-nup has been drafted following the correct procedures, which include receiving assistance from a solicitor, both parties having taken independent legal advice, and the exchange of financial disclosure. For a Divorce Court to uphold such an agreement, several tests must also be met:
Voluntary Consent
A prenuptial agreement must have been “freely entered into by each party” with no pressure from the other party.
Understanding of the Agreement
Both parties must have a “full appreciation” of the implications of entering into the prenuptial agreement. This means that both parties must have exchanged full financial disclosure with each other and have taken independent legal advice. Each must also intend to be bound by the agreement reached.
Fairness
The terms of the agreement must be “fair”.
Reviews
As well as considering the current terms of the agreement are fair, couples should regularly review their pre-nup to make sure that any change in circumstances is reflected in their agreement. For example, if a married couple go on to have (more) children then the terms of the pre-nup agreement may need to be changed to take this change in circumstance into account.
Frequently Asked Questions
What Is a Prenuptial Agreement
A prenuptial agreement, commonly known as a pre-nup, is a written legal document that two people make before entering into marriage. The aim of a pre-nup is to outline how their assets will be divided in the event of a divorce.
Agreements often look at what will happen to property, debts and income if you divorce so that each person has a clear understanding of the division of finances and assets if the marriage ends.
Are Prenuptial Agreements legal in the UK?
Prenuptial agreements are legally allowed to be made and entered in to by the parties involved.
However, it is important to note that currently pre-nup agreements are not legally binding in the UK unlike in some European countries and American states. This means that, whilst the court may take the prenup into account as part of the overall circumstances of each case, a judge will still need to consider the fairness of the division of assets.
How Do I Get a Prenuptial Agreement
To obtain a pre-nuptial agreement, each party should see a separate Family Law solicitor to take advice about what they want included in the agreement.
A Family Law solicitor will be able to advise you on what a judge may do, help you to disclose your finances and consider with you whether the terms of the proposed pre-nup are fair.
A solicitor may also help you to draft or negotiate the terms so that both parties are happy with the final agreement.
How Much Does a Prenuptial Agreement Cost?
The fees vary depending on the scope of advice to be given, and whether we would be drafting the agreement itself. The fees will also vary depending on complexity, the assets involved and any negotiations required. Following an assessment appointment to discuss the circumstances, a fees estimate will be provided.
Can a Prenuptial Agreement Be Overturned ?
Pre-nups can be changed during the course of the marriage if there has been a change in circumstances. This may include when one spouse receives a large inheritance or the couple have children.
A pre-nup can be overturned or voided for several reasons, however, this is often a lengthy process. Reasons for a pre-nup being overturned vary but can include because the agreement is unfair to one of the parties or there was a lack of financial disclosure when the pre-nup was made.
To reduce the risk of a prenup being overturned, it is in your best interests to seek specialised advice from a legal professional.
What is the difference between a Will and a Pre-Nup?
If one person passes away during the course of their marriage, the terms of their will would override any pre-nuptial agreement. Prenups are only invoked when a marriage has broken down and not if one person passes away.
Can a Prenuptial Agreement Protect Future Earnings and Assets?
Yes. One purpose of a prenuptial agreement is to protect any future earnings or assets. This is particularly important if one party is a business owner or earns significantly more than the second party.
Can I Write My Own Prenuptial Agreement?
It is possible to write your own pre-nup, however, there are risks involved in doing so. A solicitor can advise on complex legal situations that may arise and will ensure that the prenup is robust enough to hold up in court.
What Are the Benefits of a Prenuptial Agreements?
There are several advantages to obtaining a prenup prior to marriage.
Prenuptial agreements allow for financial assets, such as property and income, to be protected, plans for financial settlement in case of divorce, and any expectations to be outlined. It also enables you both to consider your financial position clearly before entering into marriage and consider what might happen to each asset if your marriage were to end. It can save time and costs in the future, should your marriage end, with arguing over the division of your assets.
What Are the Pitfalls of a Prenuptial Agreement?
If you are unsure whether a pre-nup agreement is the right choice for you, it’s worth considering the drawbacks. One of the main pitfalls of a pre-nup is that it can cause emotional strain between you and your partner before you marry.
As pre-nups are not legally binding in the UK, the court may disregard your agreement if they deem it to be unfair. Additionally, without proper legal guidance there is a risk that it won’t be enforced.
Is a Cohabitation Agreement the Same as a Prenuptial Agreement?
In short, no. Cohabitation agreements are for cohabiting couples that are unmarried. They tend to outline financial responsibilities and property rights in case the cohabiting relationship ends.
Pre-nup agreements, on the other hand, are designed for couples who are planning to marry and focus on the division of assets and any spousal support in case of a divorce.
Why Consider a Prenup?
It is common that couples do not enter into a marriage on an equal footing in terms of their income and assets, where assets have been accrued prior to the relationship, or where one party has inherited wealth. it is not unusual for a party to want to protect their position in case the marriage breaks down. A pre-nuptial agreement can, therefore, be useful in terms of setting out the position from the outset and avoid lengthy arguments about these issues if you do divorce.
As the law currently stands, pre-nuptial agreements are not legally binding on both parties. In the event of a divorce, an individual is still free to make an application to the Court regardless of the signed agreement. The Court can make a range of Financial Orders irrespective of the pre-nuptial agreement.
Despite this, the law requires a Court to have regarded “all the circumstances of the case” and a pre-nuptial agreement would be a relevant document for this purpose, enabling a party to argue that what was originally agreed should stand – especially where the agreement was entered into freely, fairly and with full understanding.
