A divorce is one of the most stressful things that can happen to anyone. Not only is there the bitter disappointment at the ending of a marriage, but the division of assets between the two former spouses can cause further resentment. And that is especially the case if one of the couple entered the marriage with assets and wealth of his/her own. They may feel it grossly unfair that a court may award a large proportion of those assets to their former spouse. One way to avoid this is through a prenuptial agreement.
Our family law team offer free initial phone advice about Prenups for clients throughout Wiltshire, Hampshire and Dorset – and overseas. Call or email us today.
The growing popularity of the prenup
As at 2021, around 52% of all marriages are ending in divorce these days. And given the powers of the family courts to re-distribute family property, prenuptial agreements are gradually becoming more popular in the UK. After marriage, all of a couple’s assets become matrimonial assets. A prenuptial agreement is designed to try and limit any claims on those assets by the other party if the marriage ends.
Your prenup – how we can help you
Our 3 specialist family and divorce lawyers regularly prepare prenuptial agreements for clients throughout Wiltshire, Hampshire and Dorset, and further afield from our offices in Salisbury, Fordingbridge, Andover and Amesbury.
Prenuptial Agreements – what are they?
A Prenuptial Agreement (also known as a Prenup, Prenuptial Contract or Premarriage Agreement) is an agreement made by a couple before marriage as to how their property should be split should they divorce.
With the increasing numbers of divorces these days, and given the powers of the court to re-distribute family property, these Prenuptial Contracts have emerged in America and to a lesser extent in England as an option to try to protect the separate property of either or both spouses at the end of their marriage.
Why would I need a prenup?
Prenuptial agreements, which by definition are signed before the wedding day, offer several advantages – particularly to those taking the greatest wealth into the relationship. In short, what you take into the marriage stays yours should it all end in divorce.
Another advantage of the prenup is that it may also take into account how assets gathered during the marriage are to be divided if you end up with a divorce. Through newspaper reports, you may have heard of prenuptial agreements involving the rich and famous. But you do not have to be rich, or even famous to appreciate the advantages of a prenup.
Prenuptial agreements are becoming increasingly popular as a method of protecting assets owned before marriage, inherited assets, and legacies to children from a previous marriage – especially for those who remarry later in life.
Anyone favouring self determination on the financial issues of a divorce may also want a pre nuptial agreement.
While a pre nuptial agreement may safeguard these assets, a contract may well be ignored in the event of a substantial change in circumstances e.g. children or a serious change in one partner’s health. Where children are concerned, their needs and those of the parent looking after them are considered paramount.
While a prenuptial can hardly be seen as romantic, they could be seen as prudent planning for the future should things between you and your spouse go badly wrong.
Is a Prenuptial Agreement binding in the UK?
Although they are not currently automatically enforceable under English law, a Prenuptial Contract properly drafted by a specialist family solicitor can be persuasive evidence to the court in showing how a couple agreed before they married to split up their property – this may have a significant impact on the outcome of a divorce case.
It is increasingly possible that an existing Prenuptial Agreement could become enforceable in the future – particularly following the case of the German heiress, Karen Radmacher, which was reported back in 2010, and which appear to show that the British courts were willing to accept that “decisive weight” be given to a Prenuptial Agreement in the UK. This decision seems likely to prove a significant step towards the prenup becoming legally enforceable in England and Wales. In fact, following the Radmacher case, the Law Commission recommended, in a 2014 report, the introduction of “qualifying nuptial agreements”. Furthermore, in January 2017, the Government announced it was considering the Law Commission’s recommendations on prenuptial agreements.
A Prenuptial Agreement is perhaps particularly relevant to those with inherited assets they wish to keep within the family, and those who remarry later in life.
When it comes to short lived marriages, perhaps with divorce sought after a few months, the terms of a pre nuptial agreement are more likely to match those at the time of a divorce. With longer marriages, courts are unlikely to take much notice of a pre nuptial agreement made, say, 20 years previously. A pre nuptial agreement may try to predict a couple’s likely financial situation, but the circumstances of a long marriage are difficult to predict.
Our solicitors provide legal advice to clients about Prenuptial Agreements in Wiltshire, Hampshire, Somerset and Dorset and throughout the UK.
Considering a prenuptial agreement – 4 things you need to know
If you are seriously thinking about making a UK prenup, there are a few basic things you should be aware of;
- Firstly, make the agreement at least 6 weeks before the date of the wedding. If it is signed any later a court could well rule that it was drawn up while one of the parties was under duress.
- Secondly, seek legal advice. A prenuptial agreement is legally binding and a solicitor will ensure it is watertight. In particular make sure that the legal advice you seek is from a solicitor specialising in prenuptial agreement. A court may well refuse to even consider a “do it yourself” prenup in a divorce hearing.
- The couple should disclose details of all their assets to each other when making the prenup. It is usually worthwhile providing copies of financial documents to support the level of financial assets at this time. If they fail to do this the courts may refuse to consider to take the agreement into account when reaching a financial settlement
- And lastly, even if the agreement has been dealt with by a solicitor and is all above board, a court may reject it if the marriage is only short lived.
Is a prenuptial agreement limited to financial issues?
No. A prenup can take into account any children one of the parties take into the marriage. The prenuptial contract can decide which of the children gets what, should the couple divorce.
Can we change a pre nuptial agreement?
If both parties signing a pre nuptial agreement wish to change the contract, this can be done. Once again, an experienced solicitor is best consulted to examine any changes and carry out any necessary redrafting of documentation.
Do I need a solicitor to prepare a pre nuptial agreement?
As pre nuptial agreements are non binding under English law, you don’t have to contact a solicitor in order to draft an agreement. However, our specialist pre nuptial solicitors strongly advise against contracts drawn up without legal guidance, as poorly constructed or badly prepared pre nuptial documentation can result in real problems in a divorce case.
In short, a badly drawn up, ill considered pre nuptial agreement can be costly, both in financial terms and the time and stress involved in a protracted divorce
You certainly can buy cheap DIY prenuptial agreements online, or you could even draft a prenup agreement yourself. But the dangers in doing so are significant. Downloading an off-the-shelf agreement or trying to draft one yourself is likely to put your assets at risk. You could lose as much as 50% [or even more] of your entire personal wealth, including houses, pensions, investments and savings and a significant chunk of your future earnings. Do you really want to risk losing all that just to save a few hundred pounds ?
Instead, our firm advice if you’re considering a prenuptial agreement, is to consult a specialist solicitor who can make sure your prenuptial agreement is tailored to your personal circumstances and is given the maximum chance of being enforceable – or at least having a significant impact on the outcome of any subsequent divorce settlement. The greater your wealth, the more important it is to get proper legal advice on your prenuptial agreement
In 2004, former England international footballer Ray Parlour, who did not make a pre nuptial agreement with his ex partner, was ordered to pay a third of his future earnings to his former spouse, amounting to many thousands of pounds. Though an exceptional case due to the substantial wealth involved, the Parlour settlement brought pre nuptial agreements into the spotlight. We strongly advise that a solicitor should thoroughly examine any pre nuptial agreement, and explain terms and conditions to a party so they are fully understood.
What will it cost?
An initial consultation with our Solicitors about prenuptial agreements by phone or e-mail is completely FREE.
If you choose to instruct us to prepare your prenuptial agreements, we will agree a fixed cost with you.
Our Prenuptial Agreement Solicitors can see you in our Salisbury, Andover, or Amesbury offices. Our solicitors also regularly prepare prenuptial agreements for clients throughout Wiltshire, Hampshire and Dorset, and further afield.
Can we get a pre nuptial agreement after we are married?
As the title suggests, a pre nuptial contract is drawn up before marriage. However, written contracts signed by a couple after a wedding and during their marriage and dealing with a potential financial settlement should they divorce are possible – these are known as post nuptial agreements (or post-nups) . But there is a key difference between a post-nap and its pre nuptial counterpart.
Since December 2008, post nuptial agreements have been considered legally binding in England and Wales, though couples are warned not to write them as a template separation agreement in marriage. Any attempt at a “cheap pay off” of a partner during marriage to avoid proper financial settlement is likely to incur the wrath of a judge ruling on a divorce settlement.
Click here to read more about post nuptial agreements.
Will pre nuptial agreements be recognised by English courts in the future?
In recent cases, the English court have described the current position of regarding pre nuptial agreements as completely unenforceable as one which is both “unrealistic” and “reflects the laws and morals of earlier generations”. These cases could hail a future change for prenuptial agreements in English
Do pre nuptial agreements apply to a civil partnership?
Yes. Since the recognition of gay and lesbian partnerships under the 2004 Civil Partnership Act, many thousands of same sex couples have officially registered their relationships, giving them the same rights as married couples. Pre nuptial agreements can be drawn up by a same sex couple who wish to make a contract for the same reason as those in heterosexual relationships. If a civil partnership is dissolved, the agreement is, again, unenforceable under English law, but may be considered in any settlement ruling.
Can pre nuptial agreements agreed in the UK be used abroad?
Many countries, legally recognise pre nuptial agreements.
However prenuptial agreements are viewed differently depending on which part of the world you are in. In much of North America and Europe for example, including France and Germany, ‘pre-nups’ are viewed as legally binding documents provided that both people involved received legal advice prior to signing the agreement; this is so that the court can be certain that no coercion was involved when making the pre-nup. Indeed, such agreements are very common in the US and Europe.
By contrast, the UK holds a reputation internationally for not upholding pre-nups, though increasingly British courts are taking the existence contents of pre-nups into account when ruling on financial settlement arising out of divorce or civil partnership dissolution – though on the strict proviso that any prenuptial agreement has been made properly in line with the conditions listed earlier on this page.
Therefore, UK solicitors can draw up a pre nuptial agreement for international clients, whom may live in jurisdictions where such contracts are binding. Clients with personal and business interests in the UK may also seek a pre nuptial agreement to be drawn up, with the expectation that it would be dealt with in the UK.