Prenuptial agreements are recognised in many countries, but in the UK they have a history of being seen as unromantic by couples about to embark on a life together.

Yet prenuptial agreements are increasingly being taken into consideration by the English courts when they are looking at financial settlements on divorce.

Find out more on when to use a prenuptial agreement, what a prenuptial agreement does and how to make it legally binding.

What is a prenuptial agreement?

A prenuptial agreement sets out the terms upon which you and your partner will separate or divorce. As you make a prenuptial agreement before you marry, the terms are agreed when there is no bitterness between you. So the costs of negotiating a prenuptial agreement are usually far less than the costs of negotiating a divorce settlement, because all the negotiation has already been made.

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What can we include in a prenuptial agreement?

A prenuptial agreement should only deal with financial matters, and not with any personal issues regarding your relationship. If you include personal matters, the court may consider that some of the non-financial clauses render the whole of the agreement void.

What about children?

You should not include arrangements relating to the care of, and contact, with children in the prenuptial agreement. The courts will not bind a child into an agreement entered into by its parents.

A prenuptial agreement, which aims to set in stone arrangements for a child is unlikely to find favour with a judge, especially if it was agreed years before the separation or divorce.

Any agreement you may wish to enter which regulates the arrangements for your children, or other non-financial matters should be put into a separate document and not in the prenuptial agreement itself. This is to protect you from a situation where a judge finds the whole of your agreement unenforceable.

There is no special form for such a document; any simple written agreement setting out your arrangements will be sufficient for the court as evidence of your intentions, should you divorce or separate.

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Is a prenuptial agreement legally binding?

As yet, not in every case, but they do hold great sway with the courts. A recent ruling by the Supreme Court over the German paper industry heiress Katrin Radmacher and her husband has given greater legal status to prenuptial agreements in divorce cases.

Since this judgment, it’s likely that a prenup will be binding providing that both parties have enough information about the other’s finances, and that they both fully understand what they are entering into and what the implications are. There will have to be some fundamental aspect of unfairness about the agreement for a court to decide that it should not be upheld.

Also, the Law Commission is drawing up a draft Bill by 2012 looking into making prenuptial agreements legally binding so it’s likely that prenuptial agreements will have official legal status in the next couple  of years.

Find out more about prenuptial agreements becoming legally binding here.

Do we need to take legal advice when making a prenuptial agreement?

Both of you should take independent legal advice before entering into a prenuptial agreement, as it will be easier to persuade a judge to take the prenuptial agreement into account in any divorce proceedings. This means that you should each get advice from separate lawyers.

When should we make the prenuptial agreement?

The marriage ceremony should take place at least 21 days after you both sign the prenuptial agreement. If you enter into the prenuptial agreement less than 21 days before the marriage, it is less likely to be persuasive on a judge, should you get divorced. A short time period between the making of the agreement and the ceremony can be construed as evidence of duress. This can invalidate the agreement.

Ideally, give your partner several months to consider and discuss the agreement with you. If you don’t get married within six to 12 months of signing the prenuptial agreement, you should draw up and sign another one

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Does the prenuptial agreement need updating?

It’s recommended that you revise any prenuptial agreement at certain key points in your relationship to ensure that it’s up to date. You should revise it:

  • At regular intervals, for example, every five years.
  • If children are born.
  • If one of you becomes disabled or unable to work.
  • If one of you becomes redundant or unable to find work.
  • If one of you retires.
  • If one of you inherits any valuable assets.

This means that when one of the above events occurs, you and your partner should renegotiate the relevant terms of the agreement and enter into a new one (i.e. a postnuptial agreement). It doesn’t need to be a complete re-draft , but it should refer to your original prenuptial agreement.

Do you want to protect your assets? Find out if a making a prenuptial agreement is right for you…

Want to make a prenuptial agreement? Use our prenuptial agreement download today and save £££s!

With Lawpack’s prenuptial agreement you can complete the legal form yourself before taking legal advice and save £££s in solicitor’s fees.

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Published on: October 26, 2010