A prenuptial agreement (prenup) is a written document signed by a couple prior to marriage or a civil partnership which sets out their joint understanding of what will happen to their finances if the marriage or civil partnership comes to an end. It is very important that both parties take their own independent legal advice and that certain formalities are followed
Prenuptial agreements & postnuptial agreements
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A nuptial agreement is an agreement which you enter into with your fiancé or spouse, either before or during your marriage, with the intention that it will set out what should happen to your assets in the event that your marriage were to unfortunately end at a later date. For many couples, nuptial agreements are an important part of their broader financial planning before and during marriage, and they are, consequently, becoming more popular.
The overriding benefit is that prenuptial and postnuptial agreements protect you and your spouse from disputes and expensive court proceedings in the future, in the event that your marriage breaks down. Although they are not automatically enforceable in England and Wales, the UK Supreme Court has given recognition to both prenuptial and postnuptial agreements and, consequently, they now influence the outcome of divorce settlements in many cases. We advise clients that, notwithstanding the current status of the law, they should expect to be held to the terms agreed in a nuptial agreement, where this has been agreed between two adults with the benefit of legal advice (and certain other criteria have been met). Unless the agreement is manifestly unfair to one party, or it fails to meet the needs of any children, the court is likely to uphold the agreement and therefore such agreements can offer a good deal of protection.
Our team has extensive experience writing nuptial agreements and offering expert advice. We have prepared nuptial agreements to achieve a very broad range of objectives, from ringfencing a small inheritance, to protecting a family business or a previous divorce settlement on remarriage. We assist couples based in the UK and overseas and frequently deal with complex or unusual arrangements. Our nuptial agreements are entirely bespoke and therefore we can cater to your requirements. Our approach is to take time to discuss with you the assets which you wish to protect, and create a nuptial agreement which suits your individual circumstances.
Common questions about nuptial agreements
Family judges in England & Wales have a very broad discretion when it comes to determining financial claims on divorce. A nuptial agreement cannot remove that discretion. However, provided certain formalities are observed, we advise that the court should respect the decision you have made to enter into a nuptial agreement. You will need to:
- Give full disclosure of your financial circumstances to your fiancé, to such an extent that they understand the implications of entering into the agreement;
- Take independent legal advice as to the agreement and its terms;
- Aim to enter into the agreement at least 28 days prior to your wedding, which avoids any suggestion of undue influence if the agreement is signed on the eve of the wedding. If this time limit cannot be observed for any reason, we advise that you also enter into a post-nuptial agreement shortly after your marriage;
Try to ensure that the agreement is “fair” to you both. In the simplest terms, if an agreement does not meet a party’s reasonable needs, it is less likely that the judge will uphold it.
Absolutely. You can enter into a nuptial agreement at any stage – before, during or after the end of your relationship (when they are often referred to as “separation agreements”). A postnuptial agreement may be appropriate if, for example, you have inherited a large amount of money and wish to keep this separate for your children’s future benefit. Or, you may be moving to another country where financial provision on divorce is determined very differently and you wish to make your own arrangements.
Often postnuptial agreements are entered into as a condition of receiving an early inheritance to ensure that family money is not lost on divorce.
No. Prenuptial agreements can be suitable for all types of couples. In their most basic form, they can simply ringfence an inheritance or assets which one party is bringing into the marriage. We have advised clients from a wide variety of backgrounds in relation to prenups, and will ensure that we explain your options and prepare the most suitable type of agreement for your circumstances.
Provided that you observe the formalities listed above, then protecting assets you bring into a marriage can be achieved. By providing disclosure of those assets to your fiancé, they are then aware of what is being excluded from the assets which would be otherwise shared upon a future divorce. The court will not, however, uphold the agreement if it is unfair and does not meet both parties’ needs. This means that if the assets in your sole name are the only assets in the marriage, and your future spouse does not have any assets or other financial resources, there is a risk that the agreement will not be upheld.
Yes. Future inheritance can be included as a type of “separate property”, which is property that the nuptial agreement will exclude from the assets which would be otherwise shared upon a future divorce. We advise that you include details of the future inheritance – as far as you know these – in the prenuptial agreement and that the agreement is reviewed when the inheritance is received to ensure that it still meets your requirements. This can also be a good opportunity to review your broader wealth planning.
Yes, subject to providing financial disclosure and meeting the other formalities set out above, you can protect your business, whether you own a limited company, are part of a partnership or are a sole trader. We will discuss the options with you and involve your accountant where appropriate, to make sure the agreement is structured in the best way to protect your business.
If you and your future spouse live in the UK, and intend to continue to live here, then entering into a UK prenup is the best option for you. However, you will need to take advice from a separate family lawyer in the country in which you hold the other assets, to make sure that sufficient protection is also put in place there. The approach to nuptial agreements varies around the world so it is important that specialist local advice is obtained, particularly if you intend to live abroad in the future.
If you have a question that isn’t here or would like advice from one of our family solicitors on divorce, then do get in touch with the family team on +44 (0)1892 506 275.
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