Pre-nuptial agreements, also known as prenup, premarital agreements, or PNA, are easily misunderstood and are sometimes given a bad reputation. An engaged couple who come to a pre-nuptial agreement may be seen as cynical or pessimistic, but doing so has numerous benefits and essentially acts as a safeguard.
In a pre-nuptial agreement, both parties agree on the way in which their finances will be handled in the event of a divorce or separation. It can be very helpful in the event of a later separation, particularly if one person has significantly more assets than the other, and so it’s worth considering in order to protect your future finances.
What is a pre-nuptial agreement?
Prior to getting married or entering into a civil partnership, couples may make a pre-nuptial agreement which specifies their financial settlement if they divorce or the partnership ends. It must be signed by both parties before the wedding or official union takes place.
What is a post-nuptial agreement?
These work in a similar way, but aren’t limited to taking place prior to marriage. At any time after the date of the marriage or civil partnership, a couple can sign a post-nuptial agreement that specifies the terms of a financial settlement in case they divorce or dissolve their civil partnership.
A couple may choose to enter into a post-nuptial agreement in order to reflect changes in their financial circumstances during the course of the marriage or civil partnership. In terms of legal authority, these are as likely to be recognised as pre-nuptial agreements, so long as they are properly prepared and both parties fully understand the implications.
Are pre-nuptial agreements legally binding?
The courts are able to enforce pre-nuptial agreements in other countries such as the United States and some European countries. However, prenuptial agreements are not automatically legally binding in England & Wales.
Pre-nuptial agreements are common in many other jurisdictions.
In England and Wales and pre-nuptial agreement is not automatically binding in the same way, but is likely to be upheld so long as certain conditions have been met:
- Both parties must have received independent legal advice and freely entered into the agreement
- They must both understand the implications of the agreement, including the rights they acquire and / or give up by entering into it
- The agreement must be fair
- The agreement must meet the requirements for a valid contract
- The agreement must have been completed at least 28 days before the wedding (and ideally longer)
- The parties should exchange disclosure about their financial affairs
- The needs of any children must be met
- Both parties’ reasonable needs must be met
Even though there is no automatic guarantee that a pre-nuptial agreement will be binding, these agreements still have value as, following the breakdown of a marriage or civil partnership, courts regard PNAs as persuasive for determining what the parties intended. This is why they are still a good consideration for some couples when entering into a marriage.
What are the benefits of a pre-nuptial agreement?
They can prove to be highly valuable in the event of a divorce, and can make the process of resolving financial claims quicker and simpler for those involved. Some people feel that a pre-nuptial agreement will help them minimise disagreement should they separate. Divorce can be an emotionally taxing process, and PNAs can help to clarify the outcome if they divorce and help the course run smoothly
Couples may be seeking an agreement over safeguarding inheritance or heirlooms, protecting a business or other such personal assets. This can have benefits in the future, especially when children or a second marriage are involved.
What terms might a pre-nuptial agreement include?
As part of the pre-nuptial agreement, each party will list all the assets owned by them, and what will happen to them in the event of a divorce or civil partnership dissolution.
For example, it may state what happens to the couple’s home, its contents, and other goods, whether there is to be a pension agreement, whether or not one person will pay spousal maintenance, and if so how it will be paid.
It is always sensible to review the agreement every few years, or when any children are born, to make sure the terms are still appropriate.
What if I’m separating without a pre-nuptial agreement?
In this situation, the usual procedures for divorce / dissolution and resolution of financial claims will be used. Visit our divorce page to find out more.
Can a Pre-nuptial agreement be contested during a divorce?
If you have entered into a pre-nuptial agreement in your partnership, it is still possible to contest this during separation.
In most cases, a dispute about a prenup will be based on an argument that it does not meet the requirements set out above, possibly as a result of a change of financial circumstances that were not anticipated at the time of signing.
You may also have your prenup contested if it was signed under improper circumstances, such as if a party was not mentally capable of entering into the agreement, did not receive legal representation, or if the agreement was not fully understood by one of the parties.
Despite this, in the majority of cases, a pre-nuptial agreement will act as an unofficial financial agreement and provide a basis of how assets will be split between parties when they separate.
If you’d like assistance with your pre-nupital agreement or divorce
With the assistance of family law solicitors, there is a good chance of creating an agreement that will be upheld in the event of a divorce or separation. The courts in England and Wales will take pre-nuptial agreements into account as a factor to be considered during financial settlement negotiations upon divorce.
We can customise our approach to meet your needs. It’s always a good idea to know your options so you can make the right choices. Here’s a short list of reasons why some couples decide to sign a pre-nuptial agreement, but we’ll help you figure out what will work for you.
The family lawyers at our firm have extensive experience in many forms of negotiation, and we can tailor our approach to meet your needs.
In addition, we are able to refer you to any other trusted experts who can support you in the process.
With a consultation, you can learn more about what we can do for you and how we can support you all the way through your case. Our clients are always our priority, and we will do all we can to reach the conclusion that’s best for you.
If you would like to arrange an initial consultation with a member of our specialist family law team, please do not hesitate to contact us on T: 0117 3751780 or E: firstname.lastname@example.org.
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