Do I need to get a Prenup before marriage?

What is a Prenuptial Agreement?

A prenuptial agreement (prenup) is an agreement that couples may enter into before they marry or enter a civil partnership. It details ownerships of assets and how these assets are to be divided if the marriage was to break down irretrievably.

Are Prenuptial Agreements legally binding?

Prenups are not legally binding in England and Wales, however, following the case of Radmacher v Granatino (2010), prenups have been regarded as persuasive in Court. The Supreme Court and Law Commission determined that the Courts ought to give effect to all prenups that meet the following qualifying criteria: -

1. The agreement must have been freely entered into;
2. Both parties must understand the implications of the agreement;
3. The agreement must be fair;
4. The agreement must be contractually valid;
5. The agreement must have been made at least 28 days prior to the wedding;
6. There should be full financial disclosure from both parties;
7. Both parties must have received their own independent legal advice;
8. The agreement should not prejudice any children;
9. Both parties’ needs should be met.

The intention behind a prenup is to eliminate the uncertainty regarding the division of finances and assets, however, if the agreement fails to meet the above criteria then it is unlikely that it will be upheld in Court.

Is a Prenuptial Agreement appropriate for me?

It is a common misconception that only celebrities or the very wealthy can have prenups, however, this is incorrect as prenups are available and possibly beneficial to all couples that are entering into a marriage or civil partnership. Listed below are some of the most common reasons for entering into a prenup: -

1. If there is an existing disparity in wealth between the parties at the time of the marriage;
2. Where there is an expectation of future wealth for one party which could be through, for instance, inheritance, career, investments etc;
3. Where there is a business to protect;
4. Where parties have previously divorced and wish to protect their assets for their own children.

What can a Prenuptial Agreement include?

A prenup can cover a range of different issues which can include, but not limited to, the following: -

• Property: It is important that a prenup details the division of the family home in the event of a divorce. Parties may also wish to protect any property that they may bring into the marriage solely or jointly together.
• Money: It is important that a prenup details all money in sole accounts, joint accounts, saving accounts and that invested.
• Debts: A prenup may protect the parties against any debt that their partner may have accrued throughout their marriage.
• Children: A prenup could also account for children’s rights over any assets.
• Inheritance: Parties may wish to safeguard any possible inheritance or expected future wealth that they may raise during the marriage.

I have left it too late/I am already married; can I still get a Prenupital Agreement? 

As stated above and as the name suggests, a prenup is an agreement which must be signed and finalised prior the marriage, however, you may still be able to formalise an agreement by way of a postnuptial agreement. A postnuptial agreement is something that is entered into by couples once they have marred and this also details how the parties would like their assets, debts and other finances to be split if they were to divorce.

In the case of McLeod v McLeod (2008) it was established that a postnuptial agreement could be upheld in the same way as a prenuptial agreement if it satisfied the criteria as above. Therefore, if you are unable to get a prenuptial agreement now, it may be important to discuss a postnuptial agreement.

Do I need a solicitor to draft a Prenuptial Agreement?

To satisfy the criteria for a valid prenup, it is required that both parties have obtained their own independent legal advice when preparing the prenup to ensure that both parties interests are protected and that they understand the terms of the agreement. Therefore, to ensure that there is no risk of the Court disregarding the prenup, legal advice and representation does need to be sought.

If you require further information on prenuptial/postnuptial agreements or want to instruct a solicitor to prepare your prenup, then please do not hesitate to contact our family department at Ramsdens, telephone 01484 821500 or family@ramsdens.co.uk.

The above article is for illustrative purposes only and does not constitute legal advice. It is recommended that specific professional advice is sought before acting on any part of the information given.