How to make a prenuptial agreement

Prenuptial agreements are marriage contracts that set out how your finances will be resolved if you and your partner get divorced. Prenups are usually sought when one of the partners has substantial wealth prior to the marriage and seeks to protect that wealth in the event of the marriage failing.

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Are prenups legally valid in the UK?

When you marry, your assets become “matrimonial assets” and unless specifically protected, can be considered for division as part of divorce proceedings. The main purpose of a prenuptial agreement is to limit potential claims on the assets of one of the parties to the marriage, thereby avoiding costly litigation.

At present, prenuptial agreements are not legally binding in the United Kingdom, however, courts are may take them into consideration, as long as certain safeguards are met.

What safeguards need to be met?

  • The prenuptial agreement was made at least 28 days before marriage.
  • Each party received legal advice about the prenuptial agreement from the outset.
  • Each party made a full and frank disclosure to the other of their financial wealth - no assets were hidden.
  • Neither party was under pressure or duress to sign the agreement against their will.
  • There has been no significant changes rendering the prenuptial agreement inappropriate (eg the birth of any children, disability of loss of employment).
  • The prenuptial agreement is fair and realistic. If the division of assets is weighted too heavily in the favour of one party, it may be judged to be unfair by the courts.
  • The prenuptial agreement is reviewed and and amended during the course of the marriage, particularly when children are born. This reduces the likelihood of the agreement not being enforced, due to the length of time elapsed since it was first made.

The prenuptial agreement is unlikely to be upheld by the courts if these safeguards are not met.

Thinking about the future

It is important that each party carefully considers future eventualities, for example:

  • One of the parties giving up their career to look after children.
  • Future business ventures together.

Each could impact upon the fairness of an agreement made between a couple about to marry.

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