Pre-nuptial agreements, also referred to as pre-nups, are entered into by couples before they marry. Here, we take a look at exactly how they work and how they can help a couple enter a new phase of their lives on an open and honest basis.

What is a pre-nuptial agreement?

A pre-nuptial agreement sets out what will happen in the event that a couple divorce. Without an agreement in place, a court’s starting point in looking at a financial settlement is generally to divide assets equally between both parties.

A pre-nuptial agreement is often considered a way of starting married life openly, as all assets and liabilities will be disclosed. It can also help avoid misunderstandings and disagreements in the future if both parties know from the start what the situation will be should they separate.

It is particularly useful where one party has been married before and has children from a previous relationship to provide for, where one party has a business or where one party has significantly more by way of assets or might receive a future inheritance. It can also be useful where one party has outstanding debts.

What should be included in a pre-nuptial agreement?

A pre-nuptial agreement can be drawn up to deal with any issues that a couple wish to include except child arrangement issues, child maintenance, personal or lifestyle issues or anything illegal or unfair.

Matters that are frequently put in a pre-nuptial agreement include:

  • How finances will be divided, to include money in sole and joint accounts, savings and investments;
  • What will happen to a shared home;
  • What will happen to any other property, which could include property owned by one party before the marriage;
  • What will happen to valuable assets, such as cars;
  • What will happen to debts, in particular if they were incurred by one party;
  • Provision for children, other than basic maintenance, to include children from a previous relationship;
  • What will happen to pets;
  • Provisions in respect of pensions;
  • Protection of future earnings;
  • How an inheritance will be dealt with if one is received by either of the parties during the course of the marriage.

Will a pre-nuptial agreement stand up in court?

Pre-nuptial agreements are not legally binding, however provided a number of criteria are met, the court will give serious weight to their contents and, where the agreement is not unfair and neither of the parties would be left in financial difficulty, the court is likely to follow it in making an order for division of assets.

The points that will usually need to be satisfied are as follows:

  • Both parties took independent advice before signing;
  • Their solicitors are able to confirm that the parties entered into the agreement voluntarily, that they were not under duress and that they fully understood the implications of what they were signing;
  • The agreement provides fairly for both parties;
  • Both parties fully disclosed all of their assets and liabilities to each other before the agreement was signed;
  • The agreement was signed at least 28 days before the marriage.

The court will also need to be sure that the agreement does not negatively affect any children.

Can you change a pre-nuptial agreement after you are married?

A pre-nuptial agreement can be amended if both parties wish to do so. The same process will need to be undertaken, with the revisions made by a qualified solicitor and both parties taking legal advice before signing. It is generally advisable that a pre-nuptial agreement is reviewed regularly (say every 5 years) to ensure the provisions remain fair.

Do I need legal advice before signing a pre-nuptial agreement?

Even if you are completely happy with the terms of your pre-nuptial agreement and you understand the implications of signing, it is still important to take legal advice from expert pre-nuptial agreement solicitors before signing. The reason for this is that it is one of the criteria a judge would look for when deciding whether to be bound by the terms of the pre-nuptial agreement when making a financial order on divorce.

If either party has not had legal advice, then the judge may feel that they did not fully understand its effect and it should therefore not be followed.

Civil partnership agreements

For those entering into a civil partnership, a similar agreement can be put in place. The same safeguards are required, including independent legal advice and full disclosure of all assets by both parties.

Is there an alternative to a pre-nuptial agreement for unmarried couples?

Unmarried couples have fewer rights than married couples when it comes to separation and the result can often be unfair. By way of example, if one party owns a property that they both share while the other pays towards the mortgage and funds work to the property, the person who has contributed still has no automatic legal right to a share in the property.

The answer is to put a cohabitation agreement in place. This will give both parties the chance to look at their shared finances and consider how they want to deal with their assets, should they separate.

Other issues can also be included in a cohabitation agreement, such as how expenses will be dealt with while the couple are together.

Book a free 30-minute consultation with our pre-nuptial agreement solicitors

Our pre-nuptial agreement solicitors in Horsham can advise you in respect of pre-nuptial, civil partnership and cohabitation agreements, to ensure that your position is protected as far as possible and that you start your new life with a degree of security.

We have extensive expertise in drawing up bespoke pre-nuptial agreements for couples with a wide range of needs. We can also draft post-nuptial agreements for those who are already married who wish to put their financial and other matters on a more formal footing.

We are happy to discuss your requirements and answer any questions you have at an initial free consultation.

For more information, see pre-nuptial and post-nuptial agreements. To arrange a free 30-minute consultation, please contact Marwa Hadi-Barnes today.