Prenuptial agreements are surrounded by numerous myths and stereotypes. Here at Marsans Gitlin Baker, we believe people should have the information required to make informed decisions for their futures.

As such, we have compiled a list of frequently asked questions about prenuptial agreements. Some answers may be surprising, but the information is useful and may even apply to you.

What is a prenuptial agreement?

A prenuptial agreement is a contract that a couple makes before marriage. It typically records who owns which assets and how the finances will be distributed if the marriage ends. 

Are prenuptial agreements legally binding?

Prenuptial agreements are not legally binding in the UK; however, courts typically uphold them as long as certain conditions are met. This is where family lawyers can assist. 

Why should I even consider something that is not legally binding?

In 2010, the case of Radmacher v. Gramatino changed the status of prenuptial agreements in UK law. The court ruled that if a prenuptial agreement is freely entered into with full appreciation of its implications, the court should give it effect, unless it is unfair to do so. 

Given this case, a correctly drafted and fair prenuptial agreement will carry “decisive weight” if freely entered into by the parties. 

What are the benefits of a prenuptial agreement?

Prenuptial agreements have many benefits. They protect assets and income. They give clarity on how finances will be divided. Additionally, having one can make a future divorce much faster, easier, and cheaper. 

What is the timeline for a prenuptial agreement?

Prenuptial agreements should be signed at least 28 days before the wedding.  Judges are less likely to uphold prenuptial agreements that do not meet this time standard. Any closer to the wedding can be seen as a hint that one party was forced or rushed into signing. 

How much do I have to disclose in order to get a prenuptial agreement?

Disclosure is paramount to a fair agreement. As such, each party must declare all of their assets and liabilities. In essence, each party must understand fully what they are agreeing to and signing. Non-disclosure is grounds for a prenuptial agreement to be disregarded in court. 

Can I challenge a prenuptial agreement?

There are grounds to successfully challenge a prenuptial agreement. These grounds include: lack of full disclosure, duress or undue influence, unfairness, and significant changes in circumstances. 

Can I get a prenuptial agreement after marriage?

No, but you can sign a post-nuptial agreement. 

Can I make a prenuptial agreement without a lawyer?

Both parties need to receive independent legal advice. Failure to have each party get independent advice may result in the court not upholding the prenuptial agreement.

How do I make sure that the prenuptial agreement is fair?

UK courts determine the fairness of a prenuptial agreement by considering a number of factors. 

• The agreement was voluntary and without any duress or undue influence.
• Both parties provided full financial disclosure.
• Each party obtained independent legal advice. 
• The agreement was signed at least 28 days before the wedding.
• The agreement ensures that neither party would be left in a position of real need while the other party was comfortable. The agreement must consider the reasonable requirements of both parties. 

What happens to assets acquired after marriage if a prenuptial agreement is in place?

A prenuptial agreement can include terms of how to categorise and divide assets acquired after marriage. However, if the change of circumstances is significant or a prenuptial agreement would not be fair, a court may not uphold the agreement.

What can be included in a prenuptial agreement?

A prenuptial agreement can include assets, property, present and future debts, past and future inheritance, business interests, investments, pensions and retirement funds, choice of venue for divorce proceedings, present and future income, trusts, stocks, and shares.

For all of these categories, a prenuptial agreement can designate how they are divided or dealt with in the event of a divorce. Spousal maintenance and financial support arrangements can also be included. 

Is there anything that cannot be included in a prenuptial agreement?

Prenuptial agreements cannot include child custody or support. The court must decide these issues in the child’s best interest at the time of divorce. Additionally, decisions about day to day living such as chores or holiday decisions are not accepted in prenuptial agreements. 

Any illegal conditions in a prenuptial agreement will cause the agreement to be void. Provisions that are impossible or speculative are also more likely to cause issues. 

Are prenuptial agreements only for wealthy individuals?

While the common association is with wealth and celebrities, a prenuptial agreement can be useful for anyone. Even if neither potential spouse currently has major assets, they may in the future, and the prenuptial agreement can address that and ensure one spouse is not saddled with debt from the other. Additionally, prenuptial agreements can make a future divorce much faster and cheaper – a clear benefit no matter your background.

What are the disadvantages of a prenuptial agreement?

Prenuptial agreements can be uncomfortable to discuss and do not exactly qualify as romantic. It is also important to draft them carefully in order to ensure they account for all the circumstances and will be upheld in court – this is where a solicitor is necessary. 

Does considering a prenuptial agreement mean that I do not trust my partner?

While this is a common view, there is a kinder and arguably more accurate way to explain it. One useful analogy compares prenuptial agreements to car insurance. With car insurance, you are not expecting or planning to get into an accident. You are not expecting any issues. However, it is universally agreed that you get the car insurance anyway. Similarly, with marriage, you are not expecting to need to use the prenuptial agreement, but having it gives an extra bit of security so you can enjoy your wedding and your marriage without worry.