Pre Nuptial Agreements

What is a Prenuptial Agreement (Prenup)?

When we marry, we sincerely hope that it will be ‘to death us do part’, but sadly statistics show that over forty per cent of marriages fail in the UK. This is a risk which cannot be ignored, particularly if you benefit from inherited wealth, offshore trusts, property, or business interests, which could be vulnerable in the event of a divorce.

A prenuptial agreement is a formalised legal contract between two people before they marry or enter a civil partnership. It provides protection, particularly in regard to pre-existing wealth and business interests, as the agreement will stipulate how all assets, and sometimes liabilities, will be distributed in the financial settlement if the relationship breaks down.

A prenup should be considered akin to life insurance. We all hope we won’t have to use it, but it can provide vital peace of mind knowing it is there.

What are the benefits of a prenuptial agreement?

Often one person comes to a marriage with more wealth than their partner, and they, or sometimes even their extended family, may be worried about protecting those assets. This is particularly so for high-net-worth individuals and those involved in family or privately run businesses. Divorce can have significant financial implications for other family members and colleagues if cash or assets have to be extracted from a business.

The main benefit of a prenup is that it provides clarity to you both and will help to alleviate any fears about losing assets that you, your partner or family members may have. For example, it is not uncommon for parents to insist on a prenuptial agreement before gifting property, significant sums or business interests to the next generation.

As well as protecting pre-existing wealth, a prenup can also cover assets which you expect to acquire in the future, such as an inheritance or business shares.

It can also be beneficial for people who have concerns about arrangements for children from a previous relationship and want to ensure they are financially looked after.

A prenuptial agreement can be very flexible in the issues it covers. For example, we have represented a number of high-profile individuals where privacy is key. In those cases, we have been able to include non-disclosure clauses to protect their private lives.

Additionally, if there is the possibility of an international divorce, this may be due to one or both of you previously having lived abroad or being foreign nationals who relocated to the UK, and then we can specify that you intend for any divorce proceedings that may arise to be taken in the UK. This may shield you from harsh foreign laws over the division of assets. This will be subject to you meeting the jurisdiction requirements in the UK, which are discussed further here in international divorce.

While some people may believe such legal agreements are unromantic or unduly pessimistic, many clients prefer the certainty that prenuptial agreement offers and find that the negotiations enable them to talk more openly about financial matters before they marry.

When should you negotiate a prenup?

If you have wealth to protect and are considering getting married or entering a civil partnership, you should talk to your lawyer as soon as possible. Our expert family solicitors in London have negotiated numerous prenups and will advise you on broaching the subject if you have not already done so.

It is very important that discussions around a prenuptial agreement begin long before the wedding day. Indeed, signing one close to your big day could impact its validity as it may be deemed to have been signed under pressure.

Are prenups legally binding?

Prenuptial agreements are not yet legally binding in England. However, since a landmark case in 2010 our courts have shown increasing willingness to abide by the terms provided it has been entered into properly.

There are a number of requirements needed to be able to convince a court that your agreement should be considered binding, which are:

• you have each taken independent legal advice on your rights and the implications of the agreement;
• there has been full disclosure of all assets and liabilities;
• the agreement allows for future family changes, such as if children arrive or someone becomes seriously ill and unable to work; and
• neither of you has been unduly pressurised into signing.

Will my prenup be upheld in a different country?

If you intend to move to a different country after you get married, you need to have confidence that your prenuptial agreement will be upheld in the UK and abroad.

Should I get a prenuptial agreement?

Pre-nups are particularly popular with couples where there is a large imbalance between partners’ earnings, couples where one partner is expecting to inherit wealth, and with older couples who are getting married for the second time, want to protect their children’s inheritance and potentially avoid some of the misery they went through divorcing their ex.

By stipulating who gets to keep which assets in the event of a divorce and what will be shared and in which proportions, couples can have peace of mind that they are protecting themselves. They can ensure inherited wealth will stay in the family, that they have the money they need to retire comfortably or if they have children, that they will not see their inheritance go to their parent’s new spouse.

Unless both parties are independently very wealthy, we generally advise against stipulating potential spousal maintenance payments in the event of a divorce. These would be hugely dependent on the specific circumstances at the time of the split.  The agreement might still stand five years after marriage, but it is unlikely anyone could accurately predict their likely financial needs further down the track, factoring in potential career changes or children.

Conversations about what might happen in the event of a split are never going to be comfortable but putting a small amount of time and money into sorting out a pre-nup can make a future divorce more painless. It can save couples a small fortune when compared with going through contested financial proceedings, saves a great deal of time and hassle if they do split and offers the chance of a less acrimonious divorce.

What’s the process for getting a prenup?

One of our expert lawyers will talk to you about your circumstances and objectives and advise you on the steps needed, including what financial disclosure you must make. Getting this information together promptly will help expedite your case, enabling you to focus on your wedding and future life together.

We will then liaise with your partner’s lawyer and draft an agreement reflecting what you agree, ensuring all formalities are followed. Our team of expert lawyers has vast experience in helping wealthy individuals, including ex-pats, elite athletes and celebrities, to reach an agreement that provides peace of mind regarding the financial fallout from a potential divorce.

We will advise you on the technical requirements needed to enable your agreement to be upheld by a court, and we will deal with your case sensitively to ensure no ill feelings arise prior to your big day.

What to expect from our prenup lawyers

Obtaining early legal advice is vital when entering a prenuptial agreement, as delay can impact the validity of your agreement. We will usually be able to offer a fixed fee prenuptial agreement, so there would be no hidden costs or nasty surprises.

To speak with one of our solicitors, contact us by:

• Filling in our online enquiry form; or
• Calling us on 020 7485 8811

Further reading:

• • Can you contest a prenuptial agreement?
  • Expensive Purchases in Prenups: Joint or Sole Property?