Nothing says ‘I love you’ like a prenup. However, with 42% of marriages ending in divorce according to ONS figures, working out what would happen to your finances in the event of a divorce can be a sensible option.
A prenup is a legal document that is drawn up before a couple gets married, which states who owns which assets and outlines who would get them should they ever decide to divorce.
Civil partners can also use these agreements, which are known as pre-registration agreements.
Who needs a prenup?
Many people think that prenups are just for the rich and famous. However, while the super-rich might have the biggest incentive to use a prenup, they can be helpful for mere mortals too.
Prenups can essentially work for any couple who want to protect assets that they have before they get married, or if they are expecting to come into a large amount of money - from an inheritance for example.
Alternatively, you may have children from a previous relationship and may not want them to lose out financially if this marriage ends.
Some younger couples who are yet to have children may also use a prenup to agree ‘career loss’ compensation, should either partner give up or take time out of work to raise a family. Such compensation is difficult to agree in the courts without an agreement in place.
Before you enter into any agreement about how your wealth would be divided if your marriage were to end, it’s important to know that, currently, prenups are not legally binding.
However, courts are taking them seriously where they have been written properly, with specialist legal advice, and there are plans to change the law to allow them (if they’re properly written).
Currently they are seen as proof of a couples’ intentions before the marriage.
To be enforceable, the agreement must meet certain requirements. These include:
Both parties signing the agreement willingly and not under duress
Both parties receiving legal advice
Both parties fully disclosing all their wealth
Signing the agreement no less than 28 days before the marriage
The terms of the agreement must not prejudice against any children
Enable you to protect any existing or anticipated wealth
Protect inheritance for children from previous relationships
Can protect a stake in a private or family run business and ensure that business isn’t disrupted by divorce
Can ensure your assets are not used to pay down any debts your partner may have
May provide the peace of mind that your partner isn’t marrying you for your money
Offer insight into just how much money your partner has before you marry
Reduce the potential for conflict should you divorce by agreeing who owns what before you marry, thereby saving both money and time
May undermine trust in a relationship
May make one partner more vulnerable
May mean that one partner may not be adequately looked after financially if their spouse dies
May not be legally binding. For example if it is deemed unfair, or it doesn’t cater for the needs of children or if circumstances have changed since it was written
There are plenty of websites offering free prenup services, however if you are serious about making one you should never just download a generic agreement from the internet. There is no 'one size fits all' prenup - it will need to be tailored to yours and your partner's individual circumstances.
If you are thinking about drawing one up it may be worth asking your local Citizens Advice Bureau for advice first, and then going through a solicitor specialising in family law to have it professionally drafted. You can find family solicitors near you on the Divorce Aid website. To be enforceable the court will need to know you both received specialist legal advice.
Once your prenuptial agreement is drawn up and you and your partner are both happy with it, the hope is that you will get married and never have to think about it again.
In case disputes occur, it may be useful for you both to have a copy to refer to if needed. Your solicitor will also keep a copy on file.
If the option of divorce becomes unavoidable, your solicitor will produce the agreement to be considered by the courts.
Hopefully that situation will not arise, and you will have many happy years together with the prenuptial agreement just there for peace of mind.