What is a Prenup and When Do You Need One?
No one enters into a marriage expecting it to end in the dreaded ‘D’ word – Divorce. However, recent statistics (as of 2021) from the government showed that there has been a 9.6% increase in divorces throughout the United Kingdom. Solicitors expect that percentage to increase further with the recent introduction of ‘no fault’ divorces. With this in mind, many are now looking into ways to protect themselves should the worst happen.
What is a Prenup?
A pre or post-nuptial agreement in the United Kingdom is a legal document drawn up between a prospective couple before their marriage which outlines how their assets are to be distributed in the event of a divorce. Prenups are generally put in place if one partner already has, or is likely to have, more assets than the other. These may include individuals with inheritance prospects, business interests, numerous properties or even those marrying later on in life.
When You May Need a Prenuptial Agreement
When one thinks of prenuptial agreements, most believe that it only applies to the wealthiest of our society with plenty of assets such as cars and houses. However, this is a total myth. We, here at Hepburn Delaney, advise our clients to consider a pre-nuptial or a post-nuptial agreement if you have any assets of value whether that is a property or an antique car. You may never know just how helpful it could turn out to be.
If you’re not yet married, you may be thinking: “When do you need a prenup?” As many are already aware, the usual starting point for financial provision upon a divorce is 50:50. However, this is only the starting point, and the Courts have discretion to move away from this depending on a number of factors. However, in cases where one party is wealthier than the other, a pre or post nuptial agreement can allow for arrangements to be predetermined.
Benefits of a pre and post-nuptial agreement
There are numerous benefits to a pre or post-nuptial agreement some of which are outlined below:
Having one already created may reduce the acrimony when the marriage ends as both parties are aware as to how the assets will be divided.
You and your partner will have a clear idea as to how the assets will be divided upon divorce. For example, in Court proceedings, the definition of ‘non-matrimonial’ property is unclear in case law, however you are able to define it within the document so that both parties are aware of the other’s protected assets.
If one partner has significant debts, there is a possibility that without an agreement those debts become ‘matrimonial’. Therefore, the agreement may enable you to protect your own assets from being used to satisfy those debts.
The document will enable you to have a creative plan as to the division of your assets which is something that the Court may not be able to do. This will enable you to maintain more control over the assets whereas the Court may impose a resolution otherwise.
You and your partner can protect assets or ringfence future assets from the other such as inheritance or interest in family businesses.
What are the potential disadvantages of a prenup?
However, there are also other factors to consider when deciding upon whether an agreement is advisable based on your personal circumstances. Read on to learn about the potential disadvantages of a prenup:
The agreement is not legally binding
Unfortunately, a pre or post-nuptial agreement is not necessarily binding as only the Court remains able to make financial orders upon a divorce. However, the Court will normally uphold an agreement if it was freely entered into, both parties obtained legal advice (i.e., understood the terms), were aware of each other’s financial circumstances and the agreement is ultimately fair. Therefore, there is a possibility that legal fees will be incurred to find out that the Court does not determine your agreement to be ‘fair’ in its eyes.
Circumstances Can Change
Sadly, pre or post-nuptial agreements cannot always determine the future and there is a possibility that circumstances change. For example, there may be children arising out of the marriage or one party becomes incapacitated. Therefore, when there is a change of circumstance and the agreement does not cover the changes, there is less likelihood that the agreement will be upheld by the Court.
They Can Feel Distasteful
One party may find it unromantic and distasteful should there be a discussion relating to an agreement during a time that the parties are planning their wedding or considering a marriage.
Whilst many would be put off by the prospect of a pre or post nuptial agreement being ‘non-binding’, there are ways in which they can still be effective. This was prescribed within the famous case of Radmacher v. Granatino (2010), but more recently in the Law Commissions report on ‘Matrimonial Property, Needs and Agreements’ in 2014 whereby specific requirements need to be met in order to have an effective agreement. These include the following:
- The Agreement must be contractually valid. This in essence provides that the general rules of contractual law applies i.e. there was no undue influence or misrepresentation. The agreement must be entered into willingly by both parties.
- The prenup must not have been made within 28 days of the marriage. This ensures that the undue influence mentioned above is not prescribed upon a party on the basis that the marriage will not go forward unless one agrees to sign the prenup.
- Both parties have engaged in disclosure. This in essence means that both parties have an accurate understanding of the others financial position prior to entering into the agreement.
- The document must be made in the form of a deed and contain a statement referring to the parties understanding its repercussions. Therefore, both parties should receive legal advice upon the agreement prior to it being signed and advised of the potential rights they are surrendering.
- The document must not prejudice any children. This is to ensure that following the birth of any child(ren) there could be a potential change of circumstances and therefore one is advised to re-visit the agreement to ‘update’ the same in these circumstances. This is often referred to as a post-nuptial agreement.
If you are interested in learning about pre or post nuptial agreements or just want a general chat as to whether you should have one, please do not hesitate to contact us today.