Prenups – do you need one?

What we call a ‘prenup’ is actually a contract signed between two people before they get married (a prenuptial agreement) detailing how their marital assets will be split if they divorce.

There has been a notion for a long time that prenups are somehow unromantic, but the reality is that a relationship breakdown is quite often a result of the couple not being willing to discuss their finances at the outset of their relationship.

So how does it work? The happy couple should be prepared to openly discuss their financial situation and any ideas and plans they have for the future before they actually commit as part of the process of getting to know each other. Some couples may have already been through a divorce before and may have children and assets from a previous marriage that they want to protect and keep separate from the “new” marriage pot. So it is entirely up to you what you include in your prenup, as long as you both agree.

Are prenups binding in the UK?

Currently, prenups as not enforceable in UK courts, but following the landmark ruling of Radmacher v Granatino, they are being given more weight during family court proceedings. Judges now certainly have to take prenups into consideration, and, if correctly drafted by a family law solicitor, the terms of your prenup might be fully upheld.

Separation is a difficult time and you will be asked to reasonably split your assets at a time when your emotions are running high. At that point, it will be handy to have your prenup ready to fall back on. The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to their agreement. If a judge feels that the necessary criteria have not been satisfied, it is very unlikely that your prenup will be upheld.

So please be mindful that a prenup will only be enforced if certain criteria are met, such as:

1. Both parties sought independent legal advice before signing their agreement;

2. The agreement is fair and reasonable and was entered into freely;

3. The prenup meets the needs of any children who were alive when the prenup was signed and who have been born since; and,

4. Careful consideration of any international elements within the relationship (and bearing in mind if Brexit happens, the law in England and Wales may change in some way, which may have implications for any agreement you have reached).

In summary, a prenup does not mean that couples will avoid total litigation in the event of a divorce and going to court will be expensive. However getting a prenup carefully written by a family law solicitor is a small price to pay for protecting your pre-marital assets as much as the current law allows. For more information, get in touch with us today on 0203 146 3549 / [email protected]

Disclaimer

All our articles are intended for informational purposes only and do not constitute legal advice. It is recommended that specific professional advice is sought before acting on any of the information provided.

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