The Undeniable Romance of a Pre-Nuptial Agreement

Most of us are familiar with the lines: ‘"We want prenup! We want prenup!" Yeah! It's somethin' that you need to have, 'cause when she leave [...], she gon' leave with half”, from a popular Kanye West song.

Instead of the negative stigma around gold diggers (thanks, Kanye), the idea of a prenup, in reality, is pragmatic. It is seldom based on suspicions about a partner’s intentions, as no one goes into a marriage hoping it will end in front of a judge.

Creating a prenup with your spouse can bring trust, confidence and lay the foundations for a great marriage.

What is a prenup?

A pre-nuptial agreement (also known as a “prenup”) is a written contract between two people, signed before they get married. The prenup will usually list all of the assets, including any property or outstanding debts, and specifies what each person’s rights are if the marriage ends.

What are common reasons to have a prenup?

If some or all of the following apply, it is usually in the couple’s best interests to get a prenup:

• Owning assets that would be difficult to split 50/50
• Protecting the inheritance rights of children from past relationships or marriages
• Protecting assets that either partner has already inherited or saved
• Owning a business that one partner wants to retain full control of, including if its profits go up
• One party has outstanding debts, which the other needs to be protected against
• Going through a previous divorce and losing out

How many couples get a prenup?

Given the British distaste for talking about finance openly and confidently, it is perhaps safe to assume the number of couples getting prenups is few and far between.

What is clear for UK couples, is the rate of divorce. Approximately 107,599 couples got divorced in 2019, according to the ONS, which estimated that around 42% of marriages end in divorce.

For millennial couples, at least one-third of whom are children of divorced parents themselves, prenups are in fact on the rise.

Common myths around prenups

Given the low rate of couples that have a prenup in place, there are, no doubt, some misconceptions about entering into one. We have put together six of the most common myths around prenups:

1. Prenups are only for wealthy people

False – Anyone can benefit from a prenup.

A prenup effectively looks to resolve disputes over finances before they arise. If a couple’s financial situation changes, for better or worse, everyone essentially leaves the marriage as they went in: responsible for their own choices.

2. One spouse will always be more protected than the other

False – If an agreement is too one-sided, it will likely be disregarded by a judge.

A prenup provides peace of mind and clarity for both parties. The spouse with higher financial status won’t lose assets of importance, but the spouse with a lower financial status won’t be left destitute.

3. Prenups are very expensive

False – In most cases, putting a prenup in place is relatively affordable.

In comparison to divorcing without a prenup, and going through a timely, expensive litigation process, getting a prenup is almost always the more cost-effective option. Essentially, the relatively low cost of a prenup can save both parties thousands in the future.

4. I only need a prenup if I think I’m going to divorce at some point

False – Prenups can achieve several outcomes, and are not limited to divorce.

The phrase, ‘Fix the roof whilst the sun is shining’ springs to mind. Laying out financial expectations and ownership is a great way to set the marriage up for success, with openness, honesty and trust established before the wedding day.

5. Only unstable or weak relationships get prenups

False – Getting a prenup can signify a strong relationship.

Completing a prenup requires couples to discuss financial matters (particularly tricky for many British people) and compromise. These skills, established early on, are likely to mean the relationship can cope with other life problems if or when they arise.

6. Prenups are difficult to enforce

False – As long as certain conditions are met (see list below), a prenup will usually be upheld.

Couples should go into their prenup expecting to be bound by its terms in the event it needs to be used. It is particularly key for couples to understand the rights each party may be giving up through entering into it, with advice from expert family lawyers.

What makes a prenup enforceable?

A prenuptial agreement is not legally binding in the same way other contracts, such as marriage, are. However, it will generally be enforceable, and therefore binding, in court, if the following conditions are met:

• The agreement must be freely entered into
• Both parties must fully understand the implications of the agreement
• The agreement must have been made at least 28 days before the wedding (we’d recommend starting the process around 4 to 5 months before)
• Parties have disclosed their actual, complete financial circumstances
• Any children are protected and not prejudiced
• Both parties' needs must be fairly met
• Both parties must have received legal advice, from separate lawyers

It is also a good idea to review your prenup every five to ten years, at minimum. This ensures that it remains relevant, and would not be viewed as outdated (and therefore unfair), in court.

Post-nuptial agreements

If you’ve missed the boat on getting a prenup, a similar agreement can be put in place after a couple has been married.

As long as the conditions in the above list are met, a court will still recognise a post-nuptial agreement in the same way as a prenup.

Post-nuptial agreements can be a great way to protect the best interests of both parties before a relationship goes awry.

Carlsons Solicitors are based in London, with a presence in Dubai, and have decades of experience in matrimonial, family and divorce law. Our expert team can help to put in place pre-nuptial agreements: get in touch to find out more.