What is a prenuptial agreement?

What is a prenuptial agreement?

You may have heard the term prenuptial agreement, or ‘prenup’ for short, in films and television, but have you ever actually wondered what a prenuptial agreement is? Well, a prenuptial agreement, or civil partnership agreement, is essentially a contract between two partners prior to a marriage or civil partnership, specifying how their assets will be divided in the event of a divorce/dissolution. Assets can include property held in your sole name, pre-marital assets (i.e. anything acquired before the marriage), inheritance, businesses, stocks and shares and belongings. Prenuptial agreements can also set out how any debts should be discharged and any maintenance arrangements.

Why should I get a prenuptial agreement?

Despite popular belief, prenuptial agreements are not just for the incredibly wealthy and are useful in a number of different circumstances, for example:-

1. Where there is a disparity in wealth between the parties;
2. Where one party wishes to protect an inheritance;
3. To avoid a lengthy, acrimonious divorce.

The starting point when looking at the distribution of marital assets at the breakdown of a relationship is an equal division, based on what is fair in all of the circumstances.  The court will first consider the needs of both parties (and any dependents) to determine how the assets should be shared.  The court has the power to incorporate pre-marital assets and use these resources to meet the needs of the financially weaker party. Therefore, any wealth brought into the marriage, including inheritance, can form part of the financial pot available for division. 

There is often an assumption that pre-marital assets will be protected automatically, and the legal implications are not always appreciated when deciding to tie the knot. It is important to note however that prenuptial agreements are not legally binding in England and Wales and as such, they will not automatically override the court’s discretion when considering the financial division. For more information on the current legal position of prenuptial agreements, see the House of Commons Library for an overview of the Law Commission’s recommendations and Private Member’s Bill Pre-nuptial agreements – House of Commons Library (parliament.uk).

Despite the fact that prenuptial agreements are not automatically enforceable, a prenuptial agreement is likely to be given weight by the court, providing it is freely entered into by each party, with a full appreciation of the implications and providing it is fair in all of the circumstances. By entering into a prenuptial agreement before a marriage or civil partnership and obtaining the relevant legal advice, both parties have an opportunity to evidence how they intend their assets to be shared, should the marriage breakdown in the future.  This will help to reduce each party’s costs in any future proceedings.

How do I get a prenuptial agreement?

You should both first seek advice from a family solicitor who will be able to help you to negotiate and agree the terms of the agreement.  This can then be drafted into an agreement in accordance with your instructions. The drafting of a prenuptial agreement should be done as soon as possible and so it is advisable that you negotiate the terms of a prenuptial agreement well in advance of any wedding/civil partnership.  An agreement entered into close to the date of the wedding/ civil partnership may put unnecessary pressure on one of the parties and could mean that the agreement is given less weight by the court. The leading case for prenuptial agreements is Radmacher v Granatino where it was held that the court should give effect to a prenuptial agreement that is:-

1. freely entered into by each party;
2. with a full appreciation of its implications;
3. unless in the circumstances prevailing it would not be fair to hold the parties to the agreement.

It is paramount that you obtain legal advice as soon as possible on any intended prenuptial agreement to ensure that it is drafted correctly and with both parties exchanging full and frank financial disclosure so you both have a full appreciation of the assets available.  Both parties should obtain independent legal advice on the agreement and should not be placed under any undue time pressure or duress to enter into the agreement.

How much does a prenuptial agreement cost and how can we help?

Our specialist team of family law solicitors have a long history of successfully supporting clients and are able to assist you with the drafting of a prenuptial agreement or advising you in relation to a draft agreement prepared by your partner’s solicitor. We can provide you with a fixed fee quotation for all of the work associated with a prenuptial agreement, based on your unique circumstances.

If you would like an initial consultation with one of our family law specialists to allow us to take your details and provide you with a bespoke quote for our services, please contact us on 0800 470 0330. The breakdown of a marriage can be one of the most stressful times and we are here to guide you through it in the best way possible, mitigating the stress both before and after the breakdown of the marriage.