What is a Prenup and Who Needs One?

Langley Wellington

It may seem implausible to consider that your marriage may break down, particularly if you have just got engaged and haven’t yet tied the knot.

However, with almost half of marriages in England and Wales now ending in divorce, it is a reality for many people.

Being prepared for this possibility by making a pre-nuptial agreement (‘prenup’) to set out in advance what will happen to your various assets should your marriage end could help avoid lengthy court battles later, saving time, money and upset.

In this blog, our experienced Pre-nuptial Agreement Solicitors consider some of the benefits of a prenup and reveal who should make one.

Why do you need a pre-nuptial agreement?

A prenup is a formal contract that two people can enter into before getting married that outlines what will happen to their assets should the marriage fail (known as a ‘pre-registration agreement’ for couples who are entering a civil partnership).

Making a pre-nuptial agreement means a couple has open conversations about their assets and can help plan for the future, which can benefit everyone.

However, there are some circumstances in which a prenup is particularly useful. These include:

If one party wishes to protect their assets. Individuals with significant wealth or pre-existing assets can use a prenup to ensure property or funds acquired before marriage remain with the original owner and aren’t automatically shareable in a divorce.

For couples with different levels of wealth. A prenup can help protect assets and can also help a financially weaker party, for example by setting out what they are entitled to if they give up work to have children.

If there are children from a previous relationship. A prenup can protect existing children by explicitly stating what is separate property and how assets will be divided in the event of divorce or if someone passes away.

If either party has business interests. A prenup can specify what assets belong to a business to ensure they are not included as marital property should the marriage break down.

If a party expects to inherit. Parties can set out in a prenup what should happen to future inheritances.

How do you make a prenup?

If you are thinking of making a pre-nuptial agreement, specialist legal advice from a solicitor with experience in prenups is crucial.

Pre-nuptial agreements aren’t automatically legally binding. However, there are certain steps you can take to ensure the court is more likely to uphold a pre-nuptial agreement.

These include:

It must meet certain requirements. Prenups must be made in writing, correctly witnessed and made at least 28 days before the date of marriage.

Both parties must take independent legal advice. This is the most common way prenups are challenged in the future.

Prenups must be freely entered into.

They should meet the needs of both parties and include adequate provision for any children.

There should be full financial disclosure when making a prenup, parties should understand its implications, and any agreement should be ‘fair’. Ideally, the Prenup will contain a summary of the parties’ assets at the time they enter into the agreement.

Your solicitor undertakes all of the necessary legal requirements and ensure your pre-nuptial agreement is drafted to meet your needs. It is also advisable to review a prenup periodically, by way of a post-nuptial agreement, to deal with any material change of circumstances.

This provides clear evidence to the court that both parties willingly entered into these agreements with a conscious decision to ringfence various assets and avoid future sharing.

At Langley Wellington LLP, our specialist family lawyers in Cheltenham and Gloucester will provide you with sensitive, constructive advice on your pre-nuptial agreement to ensure it protects your interests in the long term.

If you are cohabiting and want to put in place a similar agreement with your partner to regulate what will happen if the relationship ends, we can also advise on cohabitation agreements.

To speak to one of our friendly and professional pre-nuptial agreement lawyers, call 01452 521286 or 01242 269998. Alternatively, please email lawyers@langleywellington.co.uk.

What do you include in a prenup?

Prenups are bespoke and tailored to the needs of each couple, depending on their assets, goals and preferences.

Pre-nuptial agreements outline how a couple’s assets will be divided if they divorce, including what will happen to:

Property. A prenup can set out what will happen to jointly and individually owned properties.

Finances. How income, savings and investments will be divided can be covered by a prenup.

Inheritance. A couple can choose to include details of how any inheritances will be passed on and how any children from previous relationships will be treated.

Debts and liabilities. A prenup can protect one party from their partner’s debts.

There are some matters that cannot be included in a prenup. These include anything to do with child support and custody arrangements as well as certain personal and lifestyle factors.

Your solicitor will be able to advise exactly what a prenup can and can’t cover.