Prenuptial agreements – frequently asked questions
The top London divorce solicitors find that engaged couples and their relatives are too embarrassed to ask questions about prenuptial agreements, as they do not want to show their ignorance of what a prenuptial agreement can and cannot do.
The best London divorce solicitors say that no one should be embarrassed about asking a family solicitor a question. After all many family solicitors feel just the same degree of embarrassment when asking an actuary a question or a car mechanic when their car will not start.
In this blog we look at some of the most frequently asked questions about prenuptial agreements so that if you chose to instruct a top London divorce solicitor to prepare one you will have all the information you need to be able to ask the right questions.
How can OTS Solicitors help?
The OTS Solicitors family law team advises on relationship agreements including cohabitation agreements, civil partnership agreements, prenuptial agreements and postnuptial agreements.
To discuss how the family law team at OTS Solicitors can sensitively help you with the preparation of a prenuptial agreement or relationship agreement please call us on 0203 959 9123 to speak to one of our experienced family law solicitors.
What is a prenuptial agreement?
A prenuptial agreement (also referred to as a prenup) is a formal document entered into by an engaged couple prior to their marriage.
The top London divorce solicitors say a prenuptial agreement is a written document that details ownership of the couple’s belongings. The belongings can include cash, bank savings, pensions, and property. The belongings can be owned jointly or individually. The assets can include items or assets that the couple might acquire in future. For example, savings accumulated after marriage or gifts received as part of an inheritance.
The purpose of the prenuptial agreement is to record the belongings and to explain how the belonging will be split if the relationship breaks down.
Why sign a prenuptial agreement?
No one wants to think that their marriage will end in separation and divorce but sadly, the statistics show that a fair few marriages will end up in divorce. The benefits of a prenuptial agreement are:
- The prenuptial agreement is like an insurance policy. Many of us take out private health or critical illness insurance, hoping that we will never need to make a claim. However knowing that we have insurance in place gives peace of mind;
- There can be a frank and honest discussion about what an engaged couple currently own and may expect to receive (for example an inheritance or money through a distribution from a discretionary trust) and what they both think would be a fair split of assets in the event of a separation. It can be much easier to reach an agreement when emotions and hurt at the ending of a relationship are not clouding your judgement;
- If there is a separation or divorce, any court proceedings are likely to be quicker and cheaper, and may involve simply converting the prenuptial agreement into a financial court order as part of the divorce proceedings.
Who should sign a prenuptial agreement?
The best London divorce solicitors say that anyone can sign a prenuptial agreement but they can be particularly useful where:
- One fiancée is likely to receive a large inheritance and wants to protect that family money;
- One fiancé is a beneficiary under a discretionary trust and wants to protect capital or income distributions from the trust;
- One fiancée has more pre marriage owned assets than the other spouse and wants to protect their pre marriage wealth;
- A fiancé is a business owner and either wants to protect the business or ring fence the value of the business at the time of relationship or date of marriage;
- A fiancé has children from a previous relationship and wants to protect the children, for example if a fiancée is a widower he may want to protect any moneys inherited from his late wife for the future benefit of the children from his first marriage.
Are prenuptial agreements legally binding in the UK?
The best London divorce solicitors say that whilst currently the law says that prenuptial agreements are not legally binding in the UK, if a prenuptial agreement is carefully drawn up by an experienced London divorce solicitor it could be followed in its entirety by a divorce court. Alternatively, the fact that a husband and wife signed a prenuptial agreement could significantly reduce the size of the financial court order that would otherwise have been made by the court.
Accordingly, the top London divorce solicitors do recommend that engaged couples consider signing a prenuptial agreement.
Will a prenuptial agreement be upheld by a divorce court?
It is impossible for even the best London divorce solicitors to say that a prenuptial agreement will be upheld in its entirety by a divorce court. However, if certain steps are carried out then it is more likely that the prenuptial agreement will be followed by the court or the existence of the prenuptial agreement will limit the size of the financial settlement.
The terms of a prenuptial agreement are more likely to be upheld if:
- The prenuptial agreement is signed at least 21 days before the wedding day;
- There has been financial disclosure before the prenuptial agreement was signed;
- The couple both received independent legal advice on the contents of the prenuptial agreement and understood its terms;
- Neither the husband or wife felt coerced into signing the prenuptial agreement;
- The terms of the prenuptial agreement are fair and meet both the husband and the wife's needs.
What happens if you divorce without a prenuptial agreement?
The best London divorce solicitors say that if you get divorced without a prenuptial agreement in place the divorce court will make a financial court order if you are not able to reach an amicable financial settlement with your spouse. The order is based on the court’s analysis of section 25 Matrimonial Causes Act 1973 factors and the financial settlement that it thinks is fair to both husband and wife.
Financial court proceedings can be expensive and take a long time to finalise as the court has a very wide discretion to make a range of court orders under section 25 of the Matrimonial Causes Act 1973.
What happens if you divorce with a prenuptial agreement?
If you are getting divorced and there is a prenuptial agreement in place then the best London divorce solicitors will consider the terms of the prenuptial agreement and assess:
- How effective the prenuptial agreement is likely to be – was the prenuptial agreement signed at least 21 days before the wedding, was there financial disclosure, did the couple take independent legal advice on the prenuptial agreement;
- Is the prenuptial agreement up-to-date and relevant – if the prenuptial agreement was signed over 20 years ago and the terms of the prenuptial agreement have not been reviewed despite the birth of children or other significant life events then how relevant is it;
- Are the terms of the prenuptial agreement fair to both husband and wife?
Even if the top London divorce solicitors do not think that the divorce court will uphold the terms of the prenuptial agreement in its entirety the existence of the prenuptial agreement will normally limit financial claims and potentially reduce the costs of any family law litigation.
How can OTS Solicitors help?
If you need help with the preparation of a prenuptial agreement or advice on whether to sign a prenuptial or postnuptial agreement then OTS Solicitors family law team can help you. For more information on prenuptial agreements and relationship agreements, please call us on 0203 959 9123.