How, Why and What is a Prenup?

Katie McCann
Katie McCann
Head of Family Law and in-house counsel at Kuits Solicitors

When anyone gets married, they truly hope it will last forever; however unfortunately this isn’t always the case.

With 42% of marriages in the UK now ending in divorce, people are extremely keen to take a sensible approach by planning what should happen if their marriage does break down.

Once viewed as an extremely American concept, prenuptial agreements are now becoming a very popular way for couples in the UK to plan for the ‘worst case scenario’.

But what exactly are pre-nups? And are they even legal in the UK? Katie McCann, Head of Family at Kuits Solicitors, answers some important questions which surround this potentially complex area of law.

What is a prenuptial agreement?

A pre-nuptial agreement is an agreement created by a couple before they get married. It sets out what will happen to any assets should their marriage break down.

Why have a prenuptial agreement?

There are several reasons a couple may want to enter into a prenuptial agreement. One spouse may have family wealth requiring protection so that it is ring-fenced and will not form part of a matrimonial claim upon divorce. Even when there isn’t exceptional wealth, couples may prefer to ensure that they are on the same page by having an agreement that clarifies exactly what should happen if they divorce.

The significant benefit of a prenuptial agreement is that things can be agreed in a calm and equitable manner, as opposed to when the relationship has broken down and acrimonious feelings may cause either spouse to act without rationale.

Are they legally binding?

In the UK, prenuptial agreements are not automatically legally binding. However, recent case law seems to suggest that the courts will uphold agreements that have been entered into fairly. There have also been proposals put forward by the Law Commission that state that they should be given legal status.

Who decides on the contents of a prenuptial agreement?

The contents of a prenuptial agreement must be agreed by both parties. Although suggestions may be made by each spouse, both must feel comfortable with the agreement. If they are not, or if the court finds that either spouse was bullied or signed the agreement under duress, then the agreement will not be valid. A prenuptial agreement should therefore not be used to disadvantage one spouse, but rather it should set out a reasonable and equitable agreement.

What should go into a prenuptial agreement?

It may actually be beneficial to first consider what should not go into a prenuptial agreement, so as to avoid the court refusing to uphold certain clauses or, worse, concluding that one clause should invalidate the entire agreement. In order to avoid this, the prenuptial agreement ordinarily would not deal with anything to do with personal issues and instead would focus only on finances.

Child arrangements would rarely be included, as the court cannot guarantee to uphold such clauses on a public policy basis, given the ever changing and unpredictable needs of children as they grow up.

Whilst the contents of a prenuptial agreement will be totally subjective to the couple entering into the marriage, there are common things that are often included. These are:

  • how property should be divided upon divorce,
  • whether any property should be considered separate and therefore ring-fenced, and why
  • who should take responsibility for any debts
  • how inheritance should be dealt with
What is a prenup
What should go into a prenup? Property for one.

The recordings contained within a prenup are just as important as the actual agreements contained within. As an example, it is definitely worth recording that both parties intend for the prenuptial agreement to be binding, and that they both believe the contents of it to be fair.

It is also worth stating that the agreement has been entered into without duress or undue influence and that neither party rushed into signing it.

A recording should be included to state that both parties have taken independent legal advice, and that full and frank financial disclosure has taken place.

A recording should also be included to state that, in the event one clause is disputed, this should not invalidate the whole agreement.

It is not unusual to state that, in the event of divorce, if the prenuptial agreement is contested, the couple should attend mediation at first instance instead of petitioning at court.

Can prenuptial agreements be contested?

There are several reasons why a prenuptial agreement may be contested or found to be invalid. If both parties did not obtain legal advice, or if there was disparity of advice, this may result in one of the parties being prejudiced.

A prenuptial agreement will be contested if one of the parties feel that they had been forced to sign it. This problem commonly occurs when one spouse is presented with an agreement on the eve of the wedding and signs it under duress.

As a rule of thumb, prenuptial agreements should be signed at least 4 weeks in advance of the wedding. Both parties also have a duty to disclose all of their assets before entering into the agreement. It must be the case that each party knows what they are effectively losing or gaining claims over from the start.

What if I’m already married?

Couples that have already married may become aware of the benefits of having a prenuptial agreement and regret not having created one ahead of their wedding. In this case, they will be able to enter into a postnuptial agreement instead.

Postnuptial agreements operate in a similar way to prenuptial agreements; however, as their name suggests, they are entered into once the marriage has occurred. Like prenuptial agreements, they are not 100% legally binding; however, they are likely to be upheld by a court if they are entered into fairly.

Katie McCann is head of family law and in-house counsel at Kuits Solicitors in Manchester City Centre. She has a special interest in resolving high value relationship breakdown disputes.

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