Prenuptial Agreements UK: Essential Things You Need to Know

Are UK Prenups Legally Binding?

Prenuptial agreements are legal in the UK in the sense that courts consider them within financial proceedings in a divorce. Despite years of campaigning, prenup agreements are still not automatically legally binding.

The landmark 2010 Supreme Court case of Radmacher vs Granatino significantly altered this legal landscape. The decision in this case marked a shift in both societal and judicial perspectives regarding the autonomy of married partners.

The Supreme Court ruled that prenuptial agreements can now be enforced, providing they meet specific criteria. For a prenuptial agreement to be upheld under the Radmacher ruling, it must satisfy a three-stage test:

1. Full financial disclosure: Both parties need to be open about their assets and debts. If one party hides financial information, the agreement could be deemed unfair, and the court might dismiss it.
2. Voluntary agreement: This is crucial. If one party feels pressured or rushed into signing the agreement, the court could invalidate it. That’s why we always recommend the prenup be signed at least 28 days before the wedding to avoid any appearance of last-minute pressure.
3. Legal advice: Legal advice for a prenup is a must. This helps demonstrate that both of you fully understood what you were signing. It’s not legally required, but the courts will take a much more favourable view of the agreement if both parties had proper legal counsel.

The courts retain the discretion to enforce prenuptial agreements as part of divorce settlements under Section 25 of the Matrimonial Causes Act 1973. Judges will generally uphold a premarital agreement that meets the Radmacher test, provided it is fair in the given circumstances.

In 2014, the Law Commission released a report on Matrimonial Property, endorsing the Radmacher decision. The Commission recommended the creation of a ‘qualifying nuptial agreement’ regime, which would make prenuptial agreements fully binding if certain conditions are met.

How to Get a Prenuptial Agreement

To obtain a prenuptial agreement in the UK, you should follow these steps:

1. Early Consideration: Begin the process well before your wedding date. It is recommended that a prenup be signed at least 21-28 days before the marriage to avoid any suggestion of duress, which could affect its enforceability.
2. Full Financial Disclosure: Both parties must provide a complete and honest account of their financial situation. This includes disclosing all assets, debts, and income.
3. Independent Legal Advice: Each party should seek independent legal advice. This ensures that both individuals fully understand the agreement and its implications. The advice also helps to demonstrate that both parties entered into the agreement voluntarily.
4. Draft the Agreement: A solicitor can help draft the prenup, ensuring that it is tailored to your specific circumstances and it includes all necessary provisions. The agreement should be fair and consider any future changes in circumstances.
5. Review and Negotiation: Both parties should review the draft and if necessary, negotiate any terms. This might involve several rounds of discussion and revision to ensure the agreement is mutually acceptable.
6. Sign the Agreement: Once both parties are satisfied with the terms, the prenup should be signed. It is also advisable to have witnesses who are over the age of 18 and independent of the parties involved.

It’s also a good idea to review and possibly update the prenup periodically, especially after significant life events like the birth of children or major changes in finances.

When is Signing a Prenup a Good Idea?

Whether couples should get a prenup is entirely up to them, however, here are six specific scenarios when getting a pre-nuptial drawn up could be beneficial:

1. There is a disparity in wealth between the parties – It’s common for one party to want a prenuptial agreement if they enter the marriage with considerably more wealth. Without a prenup, they would stand to lose more than the other spouse in the event of a divorce and a division of assets.
2. There is a future inheritance for one party – Safeguarding a future inheritance is one of the most common reasons for wanting a prenup if one spouse is expecting to receive a future inheritance.
3. One party has a business to protect – If one partner owns a business before marriage, a prenup can ensure the business is considered separate property and not subject to division upon divorce. This can prevent the business from being disrupted or having to be sold to satisfy a financial settlement.
4. Pass assets to children from prior marriages – The agreement you reach can dictate the rights of children from a previous marriage regarding property or assets should the marriage break down. The most common clause in this respect is for property owned before marriage.
5. Prevent debts from becoming jointly owned – If your partner brings debt with them into the marriage, you can include a debt clause in the contract. The agreement doesn’t just protect you against existing debt, it can also go some way to protecting against debt liability should either spouse build up debts during the marriage.
6. Your partner has debts: If one partner has substantial debt before marriage, a prenup can protect the other partner from being responsible for this debt in the event of a divorce.

Can You Change a Prenup After Marriage?

Many couples wonder whether a prenuptial agreement can be changed after they’ve tied the knot. The short answer is yes, but this typically requires creating a postnuptial agreement.

Postnups allow couples to modify the terms of their original prenup to reflect any new circumstances, such as significant changes in finances, inheritance, or the birth of children.

Both parties must agree to the changes, and it’s recommended that you seek legal advice to ensure any amendments remain enforceable and fair.

Significant life changes such as the birth of a child, acquiring a business, receiving a substantial inheritance, or a drastic change in your financial situation should prompt a review of your prenuptial agreement.

Courts often consider whether a prenup remains fair at the time of divorce, so regular updates ensure that your agreement reflects your current circumstances.

It’s recommended to revisit and potentially amend your prenup every few years or after major life events to maintain its relevance and enforceability.

How Much Does a Prenup Cost?

The cost of a prenuptial agreement can vary significantly based on the complexity of your assets and the level of negotiation required.

Basic prenups start at around £1,000 for straightforward financial arrangements, while more complex agreements involving business interests, trusts, or foreign property can rise to £5,000 or more.

Factors influencing the cost include the number of assets being protected, legal consultation fees, and whether multiple rounds of negotiation are required. Discuss these with your solicitor in advance to avoid surprises.

Divorce-Online offers a fixed-fee prenuptial agreement service for £849, covering assets up to £3m in value – see how it compares to other services below.

Do I Need a Solicitor or Can I Use a Template?

While it may be tempting to use a prenuptial agreement template found online, doing so could severely affect the enforceability of the agreement in the UK courts.

The courts give much more weight to prenups drafted with the assistance of family law solicitors. A solicitor ensures that all legal requirements are met and that the agreement can be as robust as possible in court.

The legal validity of prenups drafted from a template would be questioned by the courts, particularly if it fails to meet legal standards, such as financial transparency or fairness.

If you’re determined to draft your own prenup, you can refer to our more detailed article on how to draft a prenuptial agreement in the UK.

What Can You Include In a Prenup?

A prenuptial agreement should cover financial matters only, and can include the following:

• Debts – This can include credit card debt, student loans, and other types of debt that either spouse may have. The prenup should outline who will be responsible for paying off these debts after separation.
• Property – Property clauses are very common in Prenups. Whether that is establishing what is to happen to the marital home or if one spouse wishes to keep a property they own separately.
• Maintenance – Addressing spousal and children support including whether or not it will be settled and the amount of aid given is worth including in a prenup.
• Pensions – What is to happen to any pension pots? Define within your agreement what happens to held pension pots upon separation.
• Inheritance – If you or your spouse are due to inherit money, a clause can be inserted to ensure this stays with the desired party. Inheritance can also be left to children.
• Personal Property – Art, jewelry, etc. Personal property or belongings can be kept with the owner and not shared with their husband or wife.
• Bank accounts – Prenuptial agreements can address joint bank accounts and how these will be handled in case of separation. Parties can also use a nuptial agreement to protect their income or savings.
• Business interests – A prenup can include provisions for the division of business assets and restrictions on the sale or transfer of those assets.

If you cover anything outside of financial matters in your prenup, a Judge may decide not to consider it.

This means that your prenuptial agreement cannot include decisions around child support or child custody, lifestyle matters, and outlining domestic duties.

How Are Future Assets Handled in a Prenup?

Prenuptial agreements primarily cover assets owned at the time of marriage, but they can also include provisions for future income, bonuses, or inheritances.

For individuals with significant earning potential or expected future inheritances, bespoke clauses can be added to account for these anticipated assets.

If one or both spouses anticipate significant earnings growth during the marriage, a prenup can protect these future earnings. Whether through career promotions, business success, or other financial windfalls, the agreement can outline how future income will be divided or protected.

This is especially relevant for individuals with stock options or bonuses tied to future performance.

Be aware, however, that courts may consider changes in financial status over time when evaluating a prenup’s fairness, so it’s essential to discuss these with a solicitor during the drafting process.

Final Thoughts

Think of a prenup as an insurance policy. We buy insurance for our health and holidays; why? Not because you want or think things will go wrong, but to protect ourselves should the worst happen.

Since the groundbreaking 2010 case, UK courts have been more inclined to uphold prenups that meet the legal requirements.

Ultimately, prenups allow you personal autonomy over your money and assets. Failing this, it could be left up to a Judge to decide who gets what.

More couples are getting prenups before marriage than ever before, and with Divorce-Online, it’s easier and more affordable than you thought.