What is a Prenuptial Agreement?
A Prenup (or Prenuptial agreement) is an agreement that two people enter into before they get married so as to agree what should happen in relation to their finances in the event their marriage breaks down.
It is important that Prenuptial Agreements ensure that the parties reasonable needs are met, that it is drafted following full financial disclosure from both parties, that both parties have taken their own independent legal advice, and that the outcome of the agreement is fair and there is no duress on either party to sign it.
What does a Prenuptial Agreement cover?
A Prenuptial Agreement should take into account all issues relating to your finances, particularly detailing any pre-marital assets, for example any property, investments or pensions accrued before your marriage, and it may also be prudent to consider what inheritances may be received in the future.
You should then consider what you each have now and what you each want to do with your assets. Consider what the position would be if you have children (or more children). Perhaps consider what would happen in the short term if there was a separation. What might happen if there was a separation after you have been married for a few years. Inevitably there is an element of crystal ball gazing and often the reason that Prenuptial Agreements are not taken into account by the Court is because the Court has to look at the financial position at the time it hears the case. Specialist family law solicitors can help guide you as to what should or shouldn’t be included, so that the agreement is tailored to your individual circumstances.
When should I get a Prenuptial Agreement?
If a Prenuptial Agreement, or Prenup, is entered into properly, with both parties taking independent legal advice, provide full disclosure of their financial position and if they entered into the agreement well in advance of their wedding day, then they can be hugely useful, particularly if one party has significant assets or if you have been married before, as they can provide assurances for any children from the first marriage. Prenuptial Agreements can also be used to ring-fence inherited assets or family heirlooms in the event of a marriage breakdown.
However, it is worth noting that any Prenuptial Agreement must be fair to both parties and provide them with sensible provisions if they are to be considered by the Court.
More in-depth information about Prenuptial Agreements and what they should cover can be found here.
The cost can vary but as a general guideline, between £2,000 to £4,000 plus VAT.
Yes, and an example would be if one party has placed undue pressure on the other party to sign the agreement.
It does depend upon the case in question but often a Prenuptial Agreement will protect assets acquired prior to the marriage. For example, it may be one party owned a property in their sole name prior to the marriage or it may be that one party has received an inheritance and such assets can be protected as part of the Prenuptial Agreement.
Yes, they are a good idea, and a typical situation where Prenuptial Agreements can be beneficial is where parties are marrying for the second time and want to protect assets that they have acquired prior to the marriage.
A Prenuptial Agreement will last for the lifetime of the marriage but it is often advisable to incorporate a review clause in the agreement in certain situations, for example if the parties are planning on having children in the future, then this can be a trigger for there to be a review of the agreement.
There is no legislation currently in force which provides that Prenuptial Agreements are legally binding. The current law regarding these agreements is that a court should give effect to them if they are freely entered into by each party with a full appreciation of their implications unless in the circumstances of the case, it would not be fair to hold both parties to their Prenuptial Agreement.
They can do, depending upon the circumstances as referred to above. It is important when entering into a Prenup that the terms of the agreement are fair and reasonable and crucially that the agreement meets the parties’ respective needs and the needs of any future children. It is important that the parties enter into the agreement with the full knowledge of each other’s finances and with them both having had the opportunity of independent legal advice. It is also important that the agreement is not rushed in to and is signed at least 28 days before the marriage.
It depends upon the particular circumstances but once the parties are married, the Prenup should not affect the marriage as such unless the parties have provided for there to be a review clause. Often those parties who have a Prenup will feel reassured and happy that an agreement is in place should they ever decide to separate.
Again it will depend upon the particular circumstances, but parties will want to ensure that they have made provision in particular for housing needs to be met in the event they should separate, and that their income needs should be met and often a Prenuptial Agreement will distinguish between matrimonial property and non-matrimonial property. If the parties are planning on having a family, then provision should be made where possible in the Prenuptial Agreement or provision can be made as referred to above for there to be a review clause in this instance.
No post marriage, the parties would need to enter into a Postnuptial Agreement.
The parties, with the help of their legal advisers, need to agree upon the terms of the agreement, and then once this is finalised and signed by the parties, each party retains a copy together with their solicitors.
It can, but this may prove difficult depending upon the circumstances and how much information is available. It may be reasonable to have a review clause say in 3 years or 5 years’ time and then the position could be reviewed at that time.
If one party does not comply with the terms of the Prenuptial agreement upon divorce, then court proceedings will be required.
In theory parties could draft their own agreement, but this could be problematic given the various matters that have to be carefully thought through. We recommend that each party seeks their own independent legal advice.
Each party’s signature should be witnesses by someone who is over the age of 18 and independent, so not a family member.
Both parties, together with their respective solicitors if they have legal representation.
A party can seek to provide that they do not believe the Prenuptial Agreement is fair and reasonable and it would then be a matter for the court to decide taking into consideration all the circumstances.
Yes, with the agreement of both parties.
No, and in our experience often parties who have a Prenuptial Agreement feel more secure in the knowledge that they have agreed what will happen if they should divorce.
Often parties will want to mirror the provisions of their Prenuptial Agreement in their respective Wills, and provision can be made accordingly in the Prenuptial Agreement in this respect.
Why Hawkins Family Law?
We are specialist law solicitors, focusing solely on family law matters, such as Prenuptial Agreements.
Established in 2001, at Hawkins Family Law we are all “people” people, and are committed to producing rounded outcomes for our clients, offering expertise in whatever forum works best for you, always aiming to bring matters to a swift solution with the minimum pain.
We can provide family law advice and assistance relating to Prenuptial Agreements and any associated issues that may arise, such as child related matters. Our team of Prenuptial Agreement solicitors will provide specialist legal advice throughout the whole process and work with you to help resolve these issues.
The decision to enter in a Prenuptial Agreement is your choice, but with Hawkins Family Law, you can be assured of our consistently high levels of support and guidance.