What is a Prenup: What Do They Do & How to Get a Prenup Lawyer?

What is a Prenup: What Do They Do & How to Get a Prenup Lawyer?

Although they may not be featured in any romantic books or movies, pre and post-nuptial agreements (nuptial agreements) are extremely popular (and smart). Whether youre a couple with ahigh-net-worth, are marrying later in life or for those who aren’t walking up the aisle for the first time. 

For many, a prenup contract acts as a failsafe to protect any assets - such as homes, possessions, and/ or business interests in the UK or overseas - that you would wish  to protect in the event of a divorce. A prenup provides a vehicle for ringfencing your assets, thereby preventing them from becoming part of a financial settlement.

We always urge couples to consider a prenup early on. The subject should be approached calmly and well in advance of the wedding - not sprung on your partner days before the ceremony. Reservations around signing a prenup are often a result of concern that it is a sign that you will need to use it - often seen as a bad omen. However, it is important to remember that a prenup contract, drafted by an impartial prenup lawyer, aims to protect both partners assets at a time when you are both in a clear, calm headspace.

What does a prenup do?

A nuptial agreement is a contract entered into by two people before they wed (known as a prenuptial agreement) or whilst they are married (a post-nuptial agreement). People entering into a civil partnership can also make a nuptial agreement (referred to as a pre-civil partnership agreement or pre-registration agreement). For simplicity, in this article, nuptial agreements also refers to civil partnership agreements.

Nuptial agreements set out how certain property and assets will be treated should you and your spouse divorce. This is done by defining property as matrimonial property and non-matrimonial property or as joint property and separate property.

For example, let’s say you acquired two buy-to-lets before meeting your fiancé. To ensure these properties are not counted as matrimonial property for the purposes of a financial settlement should you divorce, you can set out in a nuptial agreement that the two buy-to-lets are non-matrimonial property.

Non-matrimonial property (or separate property) usually includes:

• Assets owned before the marriage.

• Inherited assets.

• Gifts received by one party during the marriage.

• Income received from investments or a family trust.

 Please note that a UK prenup covers England, Wales and Scotland - which may have a slight difference in law specifics (and should be discussed with your prenup attorney). Equally, If you are based in Europe or America,  your prenup laws may differ from country to country or state to state.

Are Nuptial agreements legally binding?

This is the million-dollar question (pardon the pun). And it may surprise you to hear that the answer, strictly speaking, is no. An agreement between a couple cannot override the Court’s obligation to consider all the factors under section 25 of the Matrimonial Causes Act 1973 when making a Financial Order.

However, following the decision in Radmacher v Granatino [2010] UKSC 42, the Courts must give decisive weight to Nuptial agreements. 

In Radmacher, the Supreme Court held:

“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless, in the circumstances prevailing, it would not be fair to hold the parties to the agreement.”

 Regarding what is fair, the Supreme Court provided a three-stage test:

 1. The nuptial agreement must be freely entered into,

2. Each party must fully understand the implications of the agreement and

3. In the current circumstances, it must be fair to hold both parties to the terms of the agreement.

 If there is any evidence of duress, fraud, misrepresentation, or unconscionable conduct, it is unlikely that the Courts will uphold a nuptial agreement. A Court will also consider the emotional state of the parties, their ages and maturity, and how much experience they have had in long-term relationships.

 Regarding understanding the full implications of the agreement, the best evidence to demonstrate this is that both parties have received independent legal advice from an experienced Family Law Solicitor.

 It is also the case that the longer the marriage lasts, the less likely any nuptial agreement will be upheld, especially if both parties were young and had few independent assets when they married.

 Although the Court must avoid acting in a paternalistic manner by overriding the decisions made by two adults, a nuptial agreement which leaves one spouse comfortably provided for and the other in financial need is unlikely to be deemed ‘fair’, especially if there are dependent children involved.