A prenuptial agreement or ‘prenup’ is a written agreement you make before your marriage (or before registering your civil partnership). The prenuptial agreement sets out what should happen if you divorce (or dissolve your civil partnership).
Take advice about a prenup if:
• you already have substantial assets and you want to keep those out of the reckoning if your marriage breaks down;
• you have been married or a partner in a civil partnership before and are taking property into the marriage that you want to keep separate for your own children;
• there is an international aspect to the marriage, so that you might find financial awards made against you in the courts of more than one country.
We don’t own very much – is there any point in us making a prenuptial agreement?
Usually not, unless there is an international aspect to your marriage or civil partnership. But could your circumstances change? What if your business takes off or a rich relative leaves you a substantial bequest in their will?
You may prefer to cross that bridge when you come to it, rather than asking your partner to sign a prenuptial Agreement now, but it’s worth thinking about these possibilities.
What should a prenuptial agreement cover?
Your prenup should cover:
• how assets such as money, shares, pension, etc are to be divided;
• what will happen to your house(s) – who will be entitled to live where;
• any ongoing payments (maintenance) to be paid to the other and for how long;
• any maintenance to be paid for the children;
• where there is an international aspect to the family (for example, you own homes in more than one country or you and your partner are of different nationalities), the country where the divorce proceedings will take place.
Isn’t it rather unromantic to make provision for the marriage failing? How can I raise the subject of a prenuptial agreement with my partner?
Many take the view that divorce is always a possibility. It can be a sensible precaution to discuss unpleasant possibilities in an open and frank manner, just as you have to do when you make a will. Just identifying an issue can stop it being a problem later.
Getting married or forming a civil partnership revokes your will, if you have one. Even if you do not, you will want to make sure your spouse or partner is provided for if you die. So you should talk about a will with your solicitor before you marry or register your partnership anyway.
Take the opportunity to discuss with your solicitor how to raise the issue of a prenuptial agreement too – it can sometimes be more diplomatic if your solicitor raises it.
Do I need a solicitor to make a prenuptial agreement?
Yes. It is unlikely that a court would follow a prenuptial agreement unless you had both had proper legal advice on its effect.
If we decide to make a prenuptial agreement, can we both use the same solicitor to save costs?
No. It is important that each of you receives independent legal advice. Without it, the court will give less (or possibly no) weight to the prenup.
How much will it cost to make a prenuptial agreement?
Fees for drawing up a prenup are typically based on how much work is involved, so it depends on your circumstances. For example, whether there are children from previous marriages or civil partnerships, whether there is an international element, the amount and nature of your assets, etc.
Our prenuptial agreement is at least five years old – should we review it?
A prenuptial agreement must be reasonable and fair. Ensure you check with your solicitor every time there is a significant change in your circumstances, such as the birth of a new child, which might affect the award a court would make if you divorced or separated.
Also check with your solicitor from time to time, to make sure that the law (or its interpretation by the courts) has not changed in such a way that the prenup stops being considered fair.
You are likely to be better off with a prenup than without one.
Particular areas to look out for are:
• The agreement must have been made a reasonable time (preferably at least 21 days) before your marriage or the registration of your civil partnership. If it was made immediately before, the court will be concerned that one of you might have put pressure on the other.
• In all other respects it must have been made without either of you imposing any pressure or duress on the other.
• Each of you must have been given the opportunity to receive independent legal advice on the contract.
• Each of you should have given the other full and frank details of your financial circumstances.
• The terms of your agreement should be fair (although this concept is difficult to define).
Apart from a prenuptial agreement, are there any other legal matters I should think about before getting married?
• If either of you has made a will, it will become void when you marry or form a civil partnership, unless it has specifically been made in anticipation of the marriage or registration of the civil partnership. So you will probably need to make new wills.
• If either of you has not already made a will, you are strongly advised to do so. If you die without making a will, it is the law that decides who gets what if you die, not you or your spouse or partner – and there are plenty of other disadvantages to not having a will.
• If either of you has been married or a partner in a civil partnership before, your new marriage or civil partnership might affect your previous divorce settlement. Take advice.
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