Ever heard of a “prenup”? It’s short for a prenuptial agreement and is a contract couples may enter into before tying the knot to figure out what happens to their assets and debts if things don’t work out. The good news? Since 2010, prenups have been much more widely accepted in the UK, thanks to Radmacher v Granatino, where the Supreme Court overturned hundreds of years of law and declared prenups potentially legally binding as long as they follow certain legal requirements.
Prenups may be a good idea for anyone but may be especially important for people who have property to protect, are giving marriage a second shot, or have kids from a previous relationship. In this guide, we’re going to break down what prenups are, how they work, and help you figure out if it’s the right move for you. So, let’s dive in!
What is a prenuptial agreement?
A prenuptial agreement, better known as a “prenup,” is a contract between a couple that determines their rights to any assets and debt, whether acquired jointly or separately, should the relationship come to an end.
Prenups must be made before marriage. If you and your partner are already married, there’s a similar agreement known as a “postnuptial agreement,” which you can get, instead of a prenup, if the wedding day has already passed.
Who should get a prenup?
Many people mistakenly believe that prenups are only for the wealthy. That’s simply not true! Tons of different people can benefit from a prenup, not just the rich and famous. Let’s go over some of the scenarios where getting a prenup is probably a good idea:
- You have property you want to protect in case of divorce
- You are on your second marriage and want to protect your property because you already lost some of your assets in the previous marriage
- You want to avoid a lengthy property division battle should the marriage come to an end
- You have children from another relationship and want to protect your assets to make sure your children receive an inheritance from you one day
- You want to set clear and defined expectations with your future spouse on certain aspects of the marriage and upon a separation
How does it work?
Now, let’s talk about how a prenup actually works. A prenup delineates the rights and responsibilities of each spouse regarding assets, debt, and income. The prenup explains what the couple would like to happen with their property should the marriage come to an end. The prenup typically also includes instructions on matters like the mortgage on the marital home.
In the unfortunate situation that you and your partner terminate the relationship, the provisions of the prenup will become the roadmap for how various topics will be handled, such as the marital home and property division. The result? Less stress, conflict, and headaches when working the separation.
What can you put in a prenup?
Let’s talk about what contents can be contained in the agreement. Typically, prenups can cover whatever the couple can agree on (within reason), such as:
- The marital home
- Any type of property owned individually before marriage
- Any type of property owned jointly before marriage
- Any type of property that will be purchased jointly during the marriage
- Any type of property that will be purchased individually during the marriage
- Any business interests
- Spousal maintenance
- Trust funds
- Future inheritances
- Future inheritances for the parties’ children from other relationships
- Property of sentimental value
Keep in mind that prenups are customized to each couple. Each prenup will be slightly different from the next, given that they are tailored to make sense for each individual and couple.
What can you NOT put in a prenup?
Typically, UK courts will only consider prenup provisions that are financial in nature. There are no stringent rules on exactly what may go into the prenup, but they generally should revolve around the financial settlement. Prenups are meant to avoid major disputes in a divorce, but if the couple is in disagreement over the prenup, then the court will make a ruling on the agreement and which clauses to enforce.
Generally, courts will “throw out” provisions in a prenup that are extremely unfair (i.e., one person is left destitute) or against public policy, such as matters related to child maintenance, if they are not in the best interests of the child.
What are the legal x in the UK?
Can you just scribble down your wishes on a napkin with your partner and call it a prenup? Typically, no; there are certain requirements you must follow to increase your chances of the prenup being upheld in court if it is ever challenged, such as:
- The prenup must be made with sufficient time before the wedding
- The prenup must be signed willingly (no force, pressure, or duress present)
- Full financial disclosure of assets and debts from both parties
- The prenup must be reasonable
Hence why it may be a wise move to speak with a solicitor in your area to ensure compliance with the prenup requirements. Making sure you are in full compliance with UK law reduces the likelihood that a court would disregard your prenuptial agreement.
Are prenups legally binding in the UK?
As long as the agreement was properly created and doesn’t include terms that are against public policy, the court is likely to uphold the agreement. UK courts tend to favor prenups as long as they were “freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement” (quoting the pivotal Supreme Court case in Radmacher v Granatino). Post-Radmacher, UK law now recognizes the importance of prenuptial agreements as giving people personal autonomy when entering into the partnership of marriage.
Can I get a prenup after marriage?
No. “Pre” nuptial agreements must be executed prior to the wedding day. Don’t worry, though; if you want to obtain a contract with your spouse and you are already married, you still have options. There is something known as a “postnuptial agreement,” also known as “postnup,” which is similar to a prenup, but it’s executed after you’re already married. Postnups also detail how marital assets should be split up in case of a divorce, but may also be applicable immediately whilst still married. Postnups are usually legally binding as long as they are executed properly.
How much does a UK prenup cost?
The price will vary depending on which solicitor you hire, but it generally costs around £2,000 – £5,000, according to divorce-online.co.uk. For example, if you hire a solicitor who frequently works with celebrities, you may be looking at a much higher cost than if you hired a lesser-known solicitor. In addition, how much time the solicitor puts into your contract will also affect the price. In other words, are you asking for complex clauses? Do you have intricate financials? These factors may affect the cost of your prenup.
Can you write your own prenup in the UK?
While the answer is technically yes, you may fall victim to one of the many pitfalls of preparing a prenup. Prenups have only just recently (2010) been declared as potentially binding agreements in the UK, so courts do frequently accept them, but they come with plenty of conditions. For example, UK courts will typically only legally bind you to a prenup that underwent proper financial disclosure. Without it, your prenup may be disregarded. Another example is whether or not the agreement considered any significant future changes in financial positions. It may be possible to write your own prenuptial agreement, but it’s a risky proposition. There are many pitfalls to avoid when crafting a prenup, and if you make a mistake, your agreement may not be accepted by a court. So, it’s best to consult a solicitor who specializes in prenups to ensure that your agreement is binding.
The advantages and disadvantages of prenups
Still undecided on whether or not a prenup is right for you? We’ve put together some of the most common pros and cons of signing a prenup. Regardless of your situation, prenups are typically helpful in many different ways for both your personal autonomy and your relationship.
Here are some of the pros of signing a prenup:
- Create a sense of financial security in the case of divorce
- Protect children from previous relationships
- Provide peace of mind in terms of relationship motivations
- Protect family inheritances
- Protect business interests
- Outline how various marital finances should be handled
- Lay out financial and lifestyle expectations for the marriage
There are much fewer cons to getting a prenup, but here are the most common:
- The cost of paying for legal services to get a prenup
- Following the correct legal requirements to get a prenup
- Any tension that may arise from bringing up the prenup conversation with your partner
- The deadline for getting a prenup (i.e., you must get it done before the wedding day)
The bottom line
Prenups have many more “pros” than “cons” as you can see above. They aren’t just for the rich and famous anymore. They’re for anyone! And since 2010, the UK has been much more likely to accept a prenup as long as certain legal requirements have been met, such as proper financial disclosure and willingness of the parties to sign the agreement. At the end of the day prenups bring you personal autonomy, clarification in your relationship, and financial peace of mind!
Nicole Sheehey is the Head of Legal Content at HelloPrenup, and an Illinois licensed attorney. She has a wealth of knowledge and experience when it comes to prenuptial agreements. Nicole has Juris Doctor from John Marshall Law School. She has a deep understanding of the legal and financial implications of prenuptial agreements, and enjoys writing and collaborating with other attorneys on the nuances of the law. Nicole is passionate about helping couples locate the information they need when it comes to prenuptial agreements. You can reach Nicole here: [email protected]