What is a Prenuptial Agreement?
A Prenuptial Agreement (sometimes called a prenup or a pre-marital agreement) is a formal signed agreement entered into by a couple before they get married. Its intention is to set out very clearly what the parties have agreed will happen to their assets (both jointly held assets and those held in their sole names) in the event of a future divorce or permanent separation.
Is a Prenuptial Agreement binding?
Not automatically, no. The existence of a prenup does not prevent or forbid either party from making an application to the divorce court for a financial order. However, either party can show the Prenuptial Agreement to the court and ask that it be upheld. The divorce court has the power to depart from a Prenuptial Agreement if it feels that it is necessary to do so. No solicitor can guarantee that a Prenuptial Agreement will be upheld by the courts, either in whole or in part.
However, such agreements are likely to be upheld by the court if:
- Both parties had fully and honestly disclosed their assets to the other party before the Prenuptial Agreement was signed and there is a record of that disclosure;
- Both parties had their own independent legal advice before the prenup;
- The agreement was signed at least 21 days before the wedding;
- The Prenuptial Agreement contained a provision for it to be reviewed regularly; or
- The Prenuptial Agreement is fair and just.
Who should have a Prenuptial Agreement?
Prenuptial Agreements are becoming more and more popular. They are particularly popular in second marriages where perhaps the parties each have children from their first marriages and/or went through a difficult divorce, or where one party to the marriage is significantly wealthier than the other party.
What can a Prenup say?
The Prenuptial Agreement can specify that certain assets will not be included in the matrimonial pot if the parties divorce further down the line. Prenuptial Agreements can also specify that any inheritances should be excluded from the matrimonial pot. The court will want the Prenuptial Agreement to make appropriate provisions for the well-being and maintenance of any existing or future children.
What if we have already got married, or we haven’t got enough time to sign the prenup before the wedding, or we are getting married within less than 21 days?
You can have a Post-Nuptial Agreement instead but there is always a chance that one party may refuse to sign it after the wedding, even if they promised that they would sign it before the wedding. You may also wish to consider postponing the wedding until a Prenuptial Agreement can be prepared and signed.
Can we change the Prenuptial Agreement after it has been signed?
Yes, but only if you both agree.
This sounds like something I need, who do I call?
Call Cunningtons’ Family Law department today on 01245 264494 to arrange a free initial appointment with one of our expert family law solicitors to discuss your needs and options.