Prenup Guide for Couples in the UK
What is a prenup?
A prenuptial agreement or ‘prenup’ is a formal agreement reached between both parties before entering some kind of recognised union, such as marriage or a civil partnership. The agreement will set out what should happen to all assets in the event that the couple separates for any given reason. A prenuptial agreement can ensure that one or both partners retain ownership of their wealth and assets, irrespective of when, why, and how the subsequent separation occurs.
Are prenups legally binding?
Although prenuptial agreements are often settled within courts, the fact is that prenuptial agreements are NOT legally binding. If court proceedings are issued the court will consider the terms of the prenup together with other factors and if the agreement is considered fair to both parties, the court are likely to uphold the agreement.
Why should a couple consider a prenup?
Entering a prenup is often seen as a bad foot to start a relationship off on, as you’re planning for future separation. However, more and more people in the UK are entering prenuptial agreements because it provides them with something of an insurance policy to protect their wealth and assets.
An obvious working example of when a prenuptial agreement might be put in place would be if someone with a sizeable estate is planning to enter a civil union with someone with far less estate.
In this scenario, the wealthy person may wish to safeguard their property and money in case of subsequent divorce. In addition, if a couple does decide to split in the future, a prenup can significantly streamline and simplify divorce and separation proceedings, which can save you far more money than the cost of entering a prenup in the first place.
What are the potential disadvantages of prenups?
As mentioned previously, there is a stigma that entering a prenup shows a lack of trust or that you have doubts over the long-term stability of the relationship. The thought of having a safety net under your assets should you split can be seen as far less romantic than entering a relationship with complete trust and faith in its longevity.
What can a prenup contain?
A prenup does not have a set outline as to what it can and cannot contain. In most cases, however, the agreement will predominantly focus on financials and detail the allocation of wealth and assets, in the event of separation.
The prenup can be extremely specific and outline individual assets, or it can be broader and cover several assets, you will decide how your prenup is set out. We advise making sure that the agreement is as concise as possible to avoid potential disputes, in the event that it is enforced.
Prenuptial agreements commonly include:
- Property held in your sole name or joint names
- Savings held in bank accounts
- Premium bonds
- Inheritance
- Stocks and shares
- Pension pots
- Income
- Business interests
What cannot be included in a prenup?
Although premarital agreements can cover a wide range of assets, there are strict rules on what can and cannot be included. Not considering these when signing a prenuptial agreement could result in the agreement not being taken seriously in court.
Issues that cannot be included in a prenuptial agreement are:
- Child custody including visitation, religious upbringing, and schooling
- Child support
- Personal matters
- Illegal or unfair matters
- Lifestyle matters
Do lawyers need to be involved?
Yes, it is advisable. To improve the prospect that the court will not consider the agreement to be unfair if it is necessary to rely on it, both of you will need to set out your financial circumstances in full (called financial disclosure), and take independent legal advice on the agreement and its effects. You can negotiate an agreement using mediation or collaborative law, or by using solicitors to negotiate and draft the terms of the agreement on your instructions.
Are prenups kept confidential?
Yes – the information about your prenup is kept between the parties entering into the relationship and the solicitors that you work with to draw up the document. The only scenario that would see details of the prenup shared with other individuals would be if a subsequent dispute is brought before the courts. In this case, all aspects of the prenup may be discussed and scrutinised to reach a formal decision.
How long do agreements take to negotiate?
The time it takes to draw up the documents can vary enormously. If both parties have a clear idea or are already in agreement about how the assets will be divided then it’s technically possible for a prenuptial agreement to be drawn up in a matter of hours.
As with all legal processes, delays and complications can occur along the way. We recommend starting your prenuptial agreement process at least three months before the intended date of the union. In the UK a prenup must be signed at least 28 days before marriage, so make sure you give yourself plenty of time. In addition, prenups that are rushed due to limited time being available are typically considered more contentious by the courts.
Prenuptial agreement requirements
To ensure your prenuptial agreement is valid, you must ensure the following conditions are met.
- Each party must offer full disclosure of assets, liabilities, and debts in the agreement.
- The agreement must be voluntary
- Waivers of retirement can’t be made in a prenuptial agreement
- The requisite time frame for review must be met
What is the cost of an agreement?
The cost of a prenuptial agreement will be determined by its complexity and the amount of time needed to draw up the document.
What if one of the partners leaves the UK?
Although this is rare when one of the parties leaves the UK things can become very complicated. If one party now resides outside the UK, it will be up to the international court to uphold the terms and there is no guarantee they will uphold the terms and conditions in a British prenup.
As of 2023, ‘global’ prenups do not exist and the document is only valid in the country it was written in. If you do find yourself in this situation, we recommend that you seek expert legal advice at the earliest possible stage.
The reverse is also true for couples who have signed a prenup overseas and plan on moving to the UK. This means any agreements arranged in foreign territories may not be recognised or enforceable in Great Britain.
Can a court refuse to enforce a prenuptial agreement?
Yes. For a prenuptial agreement to be upheld in court, the agreement must be considered fair to both parties. This will mean you both need to fully outline your financial circumstances and seek independent legal advice on your agreement.
The Supreme Court has outlined three factors which will increase the likelihood of the agreement being upheld:
- It must be freely entered into
- Both parties must understand the implications
- It should not be unfair and hold parties to their agreement in the circumstances prevailing
