What is a prenup and is it legally binding?

More and more people have been contacting us about prenuptial agreements or ‘prenups’.

With the media attention given to multi-million dollar Hollywood prenups, we regularly receive calls from potential clients asking questions like:

• What is a prenuptial agreement?
• Are prenups legal in the UK?
• Is a prenup legally binding?
• How common are prenups?
• Should I get a prenup?
• Who prepares a prenuptial agreement?

In this article, Simon Immins, Partner from our Family Law Team, will aim to answer the most common questions about prenuptial agreements.

What is a prenuptial agreement?

A prenuptial agreement is an agreement made between two parties before marriage takes place. It can be used to set out how the couple wish their assets to be divided between them if they later separate or divorce.

This can be important if the parties to the marriage have particular family assets that they wish kept within the family, for example, a family business or family heirlooms.

Similarly, a post-nuptial agreement outlines the division of assets and finances but is made after a couple get married. If this is more applicable to you, you can read our separate article on post-nups here.

Are prenups legal in the UK? Is a prenup legally binding?

Whilst prenuptial agreements are legal in many European countries and in many states within the US and are therefore commonplace, they are not yet legally binding under English law.

However, there have been a number of cases where the court has taken into account prenuptial agreements and essentially, the position now would be that if in the event there is a prenuptial agreement the court would be asking ‘why should we not follow this agreement?’

Prenuptial agreements will usually be upheld by an English court if…

…they have been carefully negotiated (usually with the benefit of independent legal advice) unless a violating factor was present at the time the partners entered into the agreement.

Unless the court considers there are compelling grounds for it being ‘unjust’ to hold the parties to their agreement, the parties’ autonomy in entering into the agreement will be respected.

How common are prenups?

In the US, where prenups are legally binding, currently about 5 % of all married people have one. They are less common in the UK, but are increasing in popularity.

With 42% of all marriages in the UK ending in divorce, an increasing number of people are considering prenup agreements, especially those entering into marriage for a second time.

Should I get a prenup?

Prenups can be useful for you or your partner if:

• You are entering into a marriage and already have assets such as property or a business
• You are entering into a marriage where one party has a significant amount of financial liabilities or debts
• You or your partner already have children from a previous relationship
• You or your partner have been involved in a traumatic divorce

The scenario outlined below is typical of the type of enquiry we receive:

“I’m getting married later this year. I have been married before and went through a very traumatic divorce and my partner has also been married in the past. We both have children from previous marriages and it is important for us to start the marriage without any worries as to what might happen in the future.”

How do I ask about a prenup?

Many couples are reluctant to raise the question of a prenup, for obvious reasons. Planning a wedding is an exciting time, so raising the issue of divorce before you have even tied the knot can be a difficult subject to broach with your partner.

Here are our five top tips when asking your partner about a prenup:

1. Be transparent & straightforward
2. Listen
3. Don’t get angry
4. Reassure your partner
5. Think about timing

At this point of the relationship, one would hope that communications between you are very easy and you can discuss your plans for the future.

Whilst we often hear that parties optimistically say that their partner ‘just isn’t like that’ and that there will be no problems if they separate, the situation can be very different come the point of divorce or separation.

Who prepares a prenuptial agreement?

At Frettens, our specialist family solicitors can talk you through the process, help you decide whether a prenuptial agreement is necessary and, if you believe it is, prepare the documents for you.

Our Family Team are happy to discuss any issues that this raises for you and we offer a free initial meeting or chat on the phone.

If you have any questions, you only have to ask us at Frettens. Please call 01202 499255 or 01425 610100 and Simon or a member of the team will be happy to chat about your situation and your particular requirements.