Prenuptial agreements

Do I need a prenuptial agreement?

A common misconception is that a prenuptial agreement is only for the extraordinarily wealthy or celebrities, however they can be useful for any married couple who have financial assets. Whatever your assets or their value, you have a right to protect them.  Would you purchase a property without house insurance? When looking at who needs a prenuptial agreement, the answer could include any couple.

There are certain situations where you may be strongly advised to enter into an agreement, for example where there are substantial assets, business interests if you have been previously married and own your own property which you may wish to protect for your children in the future, if you are marrying and are financially independent, if there are international elements to the marriage or if one party as substantial debts.

For business owners, a prenuptial agreement can be used to help protect your business interest and minimise any future risk to the business. 

Are prenuptial agreements binding?

Prenuptial agreements are not presently binding under English law but recent case law indicates that this could be set to change in the future. Now, more than ever, prenuptial agreements are having weight attached to them and proving influential in the court room.

The most important case in recent times with respect to prenuptial agreements is that of Katrin Radmacher and Nicolas Granatino (20/07/09), in which precedent was set that such agreements are to be afforded significant evidential weight unless they are considered to be unfair. One of the Judges hearing the case stated that failure to recognise prenuptial agreements “does not sufficiently recognise the rights of autonomous adults to govern their future financial relationship by agreement in an age when marriage is not generally regarded as a sacrament and divorce is a statistical commonplace”.

Without a prenuptial agreement the starting point for the division of property and assets will generally be equality of assets between both parties. While this maybe the fairest distribution of assets they could be reasons why this would be unjust in a particular situation and hence a prenuptial agreement could be crucial for you.

Prenuptial agreement requirements

When considering if an agreement is fair and should be upheld, the court will look for certain conditions to be in place when the agreement was entered into. Below is a list of important requirements to ensure the agreement has the best chance of being upheld in a divorce court:

• Both parties signed the agreement free from coercion and pressure
• There was full financial disclosure of the financial position on both parties
• Each party obtained independent legal advice
• Each party understood the nature of the agreement
• The agreement was signed in advance of the marriage with time for the parties to carefully consider the agreement, preferably no later than 28 days before a marriage, referred to as a 'cooling off' period
• Are the terms of the agreement fair?
• Would it be an injustice if the prenuptial agreement were upheld?

How to get a prenuptial agreement

At Stephensons, we can assist you to prepare a prenuptial agreement specific to your needs and requirements so as to enable you to have the best possible chance of it being influential in the event that your relationship breaks down in the future. We do appreciate that it is not the most romantic step to take but it may certainly be one of the most sensible decisions you make.

We have a large team of experienced family specialists and can offer specific advice tailored around your unique circumstances. 

How much does a prenuptial agreement cost?

Where terms of the agreement are agreed, our team can draft a prenuptial agreement for £2,000 plus VAT. If you have specialist requirements or negotiations are needed, the agreement cost could rise.

Prenuptial agreement pros and cons

This type of agreement might not be right for every couple. We outline some of the pros and cons below:

 A prenuptial agreement can help to:

• Identify or clarify ownership of property or other assets
• Determine how finances will be decided in the event of a divorce
• Protect one partner from the pre-marriage debts of the other if the relationship breaks down in the future
• Protect assets that will pass to children from a previous marriage
• Clarify what will happen to any businesses or shares owned by either partner

However, prenupitals can also sometimes:

• Put one partner at a disadvantage financially if the marriage breaks down
• Not be kept up to date as circumstances change, and not be fit for purpose in the future
• Not be legally binding, especially if both parties did not take independent legal advice before signing the agreement
• Be considered unromantic or mercenary to enter a marriage planning for its potential failure

If you would like more information about drafting a prenuptial or postnuptial agreement please complete our online enquiry form and a member of the team will contact you to discuss your requirements, alternatively please call us on 0161 696 6193.

Postnuptial agreements

A prenuptial agreement can only be made before marriage, however it is still possible for you to make a postnuptial agreement if both parties are willing to do so.

A postnuptial agreement has the same intention of a prenuptial agreement however is made after the marriage. Frequently circumstances change over time and how parties wish to distribute your wealth or assets may have evolved over the years. A postnuptial agreement could be a way of providing reassurance by redistributing assets more fairly, and by ensuring that neither of you has to worry about your financial future.