With lawyers reporting a rise in couples wanting to sign a prenuptial agreement, we look at what this entails and when it might be suitable.
A prenuptial agreement (also referred to as a ‘prenup’) is entered into by those intending to get married and sets out what will happen to their assets and debts in the event of a divorce.
Who might want a prenup
Anyone entering into a marriage might want to consider a prenup, particularly if one party has more assets than the other, or previous commitments such as children from another relationship.
Entering into a prenup can avoid a protracted and difficult divorce later on down the line, saving time and acrimony by applying a previously agreed formula.
For those already married, it is possible to enter into a postnuptial agreement, with a similar effect.
Is a prenup legally binding?
The courts will not always uphold a prenup. They will look carefully at the individual circumstances of the prenup and the marriage and take into account the interests of any children involved.
To have the best chance of creating a prenup that will be upheld by a court, the parties should comply with the following points:
- The agreement should be drafted by a qualified solicitor;
- Both parties should take independent legal advice before signing;
- The solicitors should be able to confirm that their clients entered into the agreement freely and voluntarily and that they understand the effects of signing it;
- The prenup must not prejudice any children;
- It must be fair and the needs of both parties must be met;
- All assets must have been disclosed;
- The agreement should be signed at least four weeks before the marriage takes place.
Without a prenup, then a married couple’s assets will be deemed to be jointly owned and may be split equally in the event of a divorce.
Do you need a lawyer?
As a prenup is not a legally binding document, to have the best chance of a court upholding it, both parties should be advised by legal experts in the preparation and signature of any prenup. A lawyer will be able to take into account any potential future change in circumstances, such as having children and one party giving up their career to care for them.
A prenup should be tailored to suit the particular situation of a couple, rather than being drafted from a template. This will reassure the courts that proper consideration and advice has been given.