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Do I need a prenup?

05 August 2021 | Louise Kiely

Prenups are becoming increasingly popular in England and Wales and although it is not high on the list for pre-wedding planning, it can be an important step in protecting your assets. Louise Kiely answers the burning question: do i need a pre-nup?

What is it and do I need a pre-nup?

A prenup (formally known as a prenuptial agreement) is an agreement that shows what the couples intend to happen with their finances and assets if the marriage or civil partnership were to break down. A well prepared prenup can secure both parties’ position for the future and is intended to avoid future disputes and uncertainty.

The case of Radmacher v Granatino made it more likely that a prenup would be considered, unless unfair to do so, in the English and Welsh courts. This is also supported by the Law Commission’s recommendation that they should be deemed legally binding based upon the ‘tests of fairness’.

It is imperative that both parties take independent legal advice before entering into a prenup as this constitutes part of the ‘fairness’ test.

Why should I enter into a prenup?

Everyone has their own reasons for entering into a prenup. It may be that you both wish to be organised with your finances or one party has substantially greater assets than the other. Although it may not be considered particularly romantic, having one in place can help to avoid costly litigation should the relationship breakdown. The perception of it being a sign that a marriage/civil partnership is doomed before it even starts is eroding, it does not mean you are more likely to get divorced.

There are other reasons that are common including:

  • One or both wish to protect assets owned prior to the marriage
  • Beneficial to define matrimonial assets at the outset rather than at the point of breakdown
  • One or both have children from a previous relationship and wish to protect assets from an inheritance planning perspective
  • One or both of you have assets in a different jurisdiction

Are prenups binding?

In England and Wales prenups are not automatically binding, however the terms of them may be decisive in the event of a dispute that is dealt with by the Court unless the effect of the agreement would be unfair. Weight is given to the prenup, and this weight is increasing.

To improve the prospect of the prenup being considered fair it is important to do the following:

  • Take independent legal advice
  • Set out your financial circumstances in full (usually called financial disclosure)
  • Ensure the terms of the agreement are substantially fair i.e does it provide for both parties basic needs
  • Finalise the agreement at least 21 days prior to the marriage/civil partnership
  • Keep the prenup updated as and when circumstances change i.e children arrive
  • Execute as a deed, so the signing is witnessed by and independent witness

Even though prenups are not always binding, you should not enter into one unless you intend to be bound by the terms of that agreement. It is possible that the court might uphold part of a prenup while considering a different part to be unfair.

What can be included in a prenup?

It is a bespoke document that is tailored to your circumstances so it can cover almost anything you would like it to. We will be able to advise you as to what types of provisions are most likely to be enforceable and the focus of the agreement will be on finances.

You cannot contract out of the Court’s jurisdiction. Therefore, a prenup cannot provide that the Court will not be able to consider financial issues in relation to the marriage/civil partnership. Also, it cannot restrict any financial provision for any children of the relationship.

What happens if one party does not wish to be bound by the prenup?

If one party does not wish to be bound by the prenup, but the other person does, that person may make an application to the court for the other party to explain why an order should not be made in the terms of the prenup. Whether the court will uphold the prenup will depend on some of the factors listed above.

What is the difference between a pre-nup and a post-nup?

Simply, a prenup is entered into before marriage/civil partnership and a postnup is entered into afterwards.

Specialist pre-nup solicitors

If you have any questions regarding prenuptial agreements or would like to discuss your situation in more detail with a legal expert, we are here to help. Contact our team of friendly family solicitors by calling 0117 906 9400 or email hello@gl.law

The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.

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