For many years, even so much as mentioning the word ‘Prenup’ to your husband or wife-to-be could put your relationship on the brink, due to the common view that it shows a lack of commitment to the marriage and a lack of faith in the partnership.
However, for couples planning to tie the knot, getting a prenup makes practical sense and can, in actual fact, strengthen your relationship by showing your partner you are responsible and forward-thinking. If you are in two minds about whether getting a prenup is the right decision for you, here are the main things you need to know as advised by Lucinda Holliday, the head of family and divorce at Blaser Mills Law.
What is a prenup?
Short for ‘prenuptial agreement’ (or premarital agreement), a prenup is a contract that two people enter into before marriage or civil partnership that spells out the conditions of how they will hold, gather and distribute assets both during marriage and in the event of divorce.
Assets that the document might cover include wealth, property, income, inheritance and debts, whether they are acquired individually or jointly, before or during the marriage.
In most cases, each party obtains its own solicitor who represents them throughout the process. This is to ensure that their individual interests are protected and is necessary to make the contract enforceable.
Why is there so much taboo around the idea?
The main reason why many people view prenups so negatively is that, historically, there has been a stigma surrounding them suggesting they take all the love and romance out of the relationship, or that they are only meant for very wealthy people who need to protect huge assets. However, this is a myth.
Anyone who has been through a divorce before will know that the pain and trauma are only worsened when you must face arguments over finances and assets, so it is in the best interest of both you and your partner to plan for possible future scenarios and ensure you are protected.
Why do I need one?
Given shifting gender roles, for example, more stay-at-home dads and the rise in women becoming the ‘breadwinners’ of the household, arguably, getting a prenup is more important now than ever. Prenups protect both partners in a marriage in the event of a divorce and create the opportunity for a very honest and up-front conversation about finances, children, estate plans and assets prior to saying ‘I do’.
If you are preparing for your second marriage, a prenup will enable both you and your partner to agree on specific provisions for children from a first marriage, or for you to protect finances, property or assets you built up prior to your second marriage.
Conflicts over finances are sometimes at the centre of marital conflicts leading to divorce so, by determining ahead of time each party’s financial responsibilities, you can prevent potentially relationship-ending conflict. A prenup can also prevent one person’s debt becoming the responsibility of the other, and typically reduces the amount of time a divorce lawyer would have to spend on the individual case, often resulting in lower fees.
Is a prenup legally binding?
A prenup is not legally binding per se, however, a judge is very likely to give weight to what has been agreed when considering a financial settlement. The judge will assess the fairness of the agreement when made, and the capacity of the weaker party to have said no at the time. They will also look at the fairness of the circumstances that have arisen over the years, by the time of the financial settlement.
Under Section 25 of the 1973 Matrimonial Causes Act, the court must “have regard to all circumstances of the case”. A prenup agreement that is fair, which meets the requirements of the act and is freely and knowingly entered into will be considered.
The court will prioritise making provisions for the welfare of children in the family under the age of eighteen, before determining how the assets of the marriage are split so when drafting a prenup, it is important to accommodate the birth of any children if this is a possibility. When splitting assets, the court will consider a number of factors including [but not limited to] the financial resources available to each party, their financial needs, obligations and responsibilities and the standard of living of the family before the marriage breakdown.
Why might my prenup be disregarded?
Generally speaking, a prenup will only be disregarded by the court if it is considered to be unfair. This usually happens if there is deemed to have been a change of circumstance which renders it inappropriate, for example, the birth of children, a new disability or loss of employment. By reviewing your prenup periodically you can address any changes in circumstance to ensure it would still be regarded as fair in court and reduce the likelihood that it would not be enforced.
It might also be disregarded if there has been insufficient time to consider it properly, if legal advice has not been given to both parties or if there has not been full disclosure at the time of entering into the agreement.
What if I don’t get one?
If you decide not to get a prenup, all collective assets become matrimonial assets once you are married and are thrown into a single financial pot. Therefore, if you and your partner split and cannot reach an agreement on how to divide your assets, the dispute will end up in court where a judge will control how they are distributed, and the decision will be taken out of your hands. This could potentially result in your assets being split evenly between you and your spouse, including those assets that you have brought into the marriage.
Not only that, going to court will be expensive, whereas getting a prenup written by an experienced family lawyer is a much smaller price to pay for protecting your pre-marital assets as much as possible.
Despite the adage that prenups are a romance killer, there is nothing remotely embarrassing about getting one, it is simply a practical and sensible choice for you and your partner. By being pragmatic and planning for the unexpected, you can help avoid unnecessary tension and significant legal fees in the future.