7 things you should know about prenuptial agreements in England and Wales

7 things you should know about Prenuptial Agreements in England and Wales

If you got engaged over the Christmas and New Year holiday – congratulations! Wedding planning can start in earnest and you can look forward to a future together with your partner.

One of the less romantic aspects of the pre-big day planning that you might wish to consider is the prenuptial agreement.

Our Family Law team answer 7 questions about prenuptial agreements in England and Wales in this article. It is always best to get early advice from a Solicitor.

What is a prenup? A prenuptial or premarital agreement is a document prepared before marriage or civil partnership which records how the parties to the marriage or civil partnership with their financial affairs to be resolved should they separate in the future.

1. Who should have a prenup? Any couple planning a wedding or civil partnership ceremony should consider having a prenup. However, they can be particularly helpful for those who have built up their own wealth prior to the relationship or who own their own property or business. They can help protect an inheritance or a future inheritance.
2. Are prenups legally binding? A prenup cannot prevent the Court from making financial orders at the end of the relationship. However, since the case of Radmacher v Granatino in 2010, Courts should give effect to a prenup if it was 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.
3. What counts as unfair? Essentially, the agreement must enable the parties to meet their financial needs on separation. If the agreement leaves one person comfortable whilst the other cannot meet their needs, then this is likely to be seen as unfair. As needs will be different in any relationship it is important to consider this issue very carefully and take specialist legal advice on how the Court treats the financial claims at the end of a relationship.
4. Suggesting a prenuptial agreement to my partner will be too awkward. Increasingly, this doesn’t appear to be the case. In times when individuals are getting married later in life or have independent wealth, entering into a prenuptial agreement can actually be a great opportunity for you and your partner to be completely honest, realistic and plan for your joint future.
5. What should we include in our prenup? It is important that you disclose your financial positions to one another. The document can then set out how you will divide your financial resources if you separate in the future and can set out how you will divide property, assets and pensions and how financial needs will be met. It can detail which assets will be retained by each party.
6. How do we make sure our prenup will carry weight if we separate? The agreement must be freely entered into with you both having a full understanding of the implications of the agreement. Therefore, it is important that you take independent specialist legal advice. If the Court finds duress, undue influence or misrepresentation then the agreement might not be upheld. It is advisable to plan ahead and sign the prenup not less than 28 days before the date of your wedding or civil partnership ceremony and the document should be executed as a Deed.