In this update, we discuss what is a prenup, the main benefits of having one and why you should consider it to protect your assets.
What does a prenup / prenup agreement do?
Prenups are designed to avoid the upset and expensive of a divorce battle. No one gets married to get divorced but for the romantic realists, taking the time to negotiate a fair division of assets, if the worst were to happen and the marriage break down, provides peace of mind and can save huge costs later. The school of thought that having a prenup best ensures that you are marrying only out of love – and no other nefarious purpose/collateral reason - is boosted by this decision.
Prenups provide greater certainty as to how assets will be divided on divorce. Debate continues as to whether the Matrimonial Causes Act 1973, the 50-year-old legislation that determines which factors a court will consider when dividing assets on divorce provides far too much discretion resulting in acrimony, stress, uncertainty and high legal fees. This is another factor in making a prenup a pragmatic prospect as it gives parties more certainty over what would happen if they were to separate.
Are prenups legally binding in the UK? Why you should not write your own prenup
Although still not automatically binding, if the below conditions are met, prenups should be upheld by the courts in England and Wales.
The prenup will ideally be:
freely entered into i.e. without undue pressure or influence. The key word here is ‘undue’. It’s important to appreciate that one party saying they will not get married until a prenup has been signed will not qualify as placing undue pressure on the other
fair when it is entered into and remain fair at the point of divorce i.e. the agreement must meet the financially weaker party’s needs
signed at least 28 days before the wedding
entered further to the exchange of financial disclosure and negotiation of appropriate terms
negotiated/signed further to receipt of independent legal advice – and if either parties declines to do so, they must understand the implications of this decision
It is important to also appreciate that a prenup cannot prejudice children’s financial needs.
Prenup pros and cons
It is not only celebrities or ultra-high net worth individuals who get prenups. The greater the gulf between parties’ respective financial standing – the greater the need for a prenup but they can be a pragmatic option in many cases.
The pros of having a prenup
- Avoid a costly, time consuming, stressful and acrimonious divorce.
Given the family court has so much discretion in England and Wales e.g. if you ask ten different judges to determine the outcome of a case, they will arrive at ten different outcomes - having a valid prenup means that parties have greater certainty, clarity and assurance as to how assets will be divided hopefully avoiding an expensive legal battle.
- A party can protect their assets, this is especially beneficial where:
the parties have different financial backgrounds e.g. one party may have significant assets to their name and the other does not
parties are marrying for a second time e.g. where one of the parties may already have been burned by a stressful and expensive divorce and/or to protect assets for children of a first marriage
a party wishes to protect particular assets that they are bringing into the marriage and want clarity that such assets will be ring fenced on divorce
- Both parties enter the marriage with visibility over respective assets, as financial disclosure will be exchanged in the process of drafting the prenup. This can provide the parties with a sense of transparency and openness – which is beneficial when beginning married life.
- Both parties should have peace of mind that they fully understand the ramifications of the prenup and are content with its provisions – leaving both to focus on the wedding, their marriage and their future lives together. Each party should consider they have had a voice in shaping the prenup.
- Prenups are flexible and can be tailored to parties’ needs. They also need not last forever. For example, prenups can be drafted to fall away after a period of time and can include provisions to ensure that the outcome changes if the parties start a family.
- Solicitors will recommend prenups to financially stronger parties. Financially weaker parties can also benefit from knowing how assets would be divided on divorce which for couples without a prenup will be an unknown.
The cons of having a prenup
- It can be something of an awkward prospect to bring up and parties can find discussing provisions difficult. However, ensuring discussion is through solicitors and the subject is not discussed at home can minimise issues. Your solicitor can guide you through the prenup negotiation process and structure negotiations to minimise the impact on your relationship. Yes, divorce lawyers have had clients who have not got married as arguments in respect of the prenup became overwhelming. However, I have yet to have a client who has not ultimately been relieved that those weddings never happened.
It is not possible for the parties to enter a valid prenup which does not meet both parties’ needs. For example, if you were concerned that your partner may be looking to financially improve themselves on marriage… you cannot make them sign an agreement which provides that they leave the marriage with nothing. Even with a valid prenup, marriage can still be a huge financial commitment if it breaks down. The key is that the situation can be preferential for a financially dominant party if there is a prenup in place. And for the financially weaker party, needs will be generously interpreted. Even if the financially weaker party won’t do as well if they could have if the valid prenup was not in place, they will still be taken care of.
There is the cost of negotiating and finalising a prenup. However, beware the false economy of saving on fees of negotiating and finalising a prenup as this can come back to bite. If independent legal advice has not been taken by the parties and the prenup has not been negotiated etc. it may be found to be invalid. Investing in a valid prenup can potentially save up to six-figure sums in legal fees on divorce.
- It needs to be done properly. Yes, it’s more admin (sigh..) but do not be tempted to simply print and sign a prenup template off the internet before your big day. As discussed here, both you and your partner need to take independent legal advice in good time ahead of the wedding. The prenup does not need to cost astronomical sums but could literally save a fortune. Some people regard prenups as akin to marriage insurance – giving more certainty as to how assets will shake down if the parties split.
For more information about prenups and whether you should consider one, please get in touch with one of our family lawyers