Prenuptial agreements: a short guide

In conversation, mention of prenuptial agreements can have a pretty polarising effect, with considerable clear water opening between the romantics and the pragmatics.

What is a prenuptial agreement?

A prenuptial agreement, or ‘prenup’, is a written agreement between a couple before their marriage. It should detail their joint assets, and explain how they will be divided should they get divorced.

At one time, prenups tended to be associated with the very wealthy, but today they are increasingly prevalent. One reason for this is the tendency now for couples to marry later than in previous generations. This means that each party has had more time to accumulate assets – a home, pension, savings – before getting married, than their parents or grandparents.

There are also now a greater number of second marriages, perhaps with children from earlier relationships, and a desire to maintain a distinction between the assets that each party brings to the marriage.

Are prenuptial agreements legally binding?

Couples who have decided to enter into a prenuptial agreement are often surprised to hear that in England and Wales they are still not legally binding. Despite that, the court will always consider the terms of any agreement very carefully, paying particular attention to whether:

• the parties entered the agreement voluntarily and without duress;
• both parties understood the implications of the agreement;
• there was full disclosure of assets and liabilities;
• both parties obtained independent legal advice;
• the terms of the agreement are fair.

If the court is satisfied with all of these factors, there is a strong probability that the agreement will be upheld.

Couples are advised to sign a prenuptial agreement some time before getting married – usually at least 28 days. This can help demonstrate to the court that each party had sufficient time to reflect on the agreement – essentially a ‘cooling off’ period – and that no undue pressure was placed upon either party.

How do I get a prenuptial agreement?

There is considerable scope to get a prenuptial agreement wrong, either in content or procedure. Homemade prenups should therefore be avoided, and legal advice always sought.

Couples can be put off by the need for each of them to be advised independently. They may be concerned at the total cost, but a prenup is relatively inexpensive in most cases. In any event, the potential certainty it brings to any future relationship breakdown should render the cost a very worthwhile investment.

There can also be a worry that obtaining independent advice will create tension, mistrust and disagreement. But failing to be advised independently substantially increases the chances of the court not upholding the agreement. Remember, a solicitor’s duty is to advise you objectively on the proposed agreement to better enable you to make an informed decision. And if a potential issue is highlighted, the chances are that your partner has also received the same advice.