Prenuptial Agreements: The Most Commonly Asked Questions Answered

Nowadays, many couples who are planning to get married sign a prenuptial agreement in order to establish and formalise the division of property and support in case of divorce or the death of one of the partners. Prenuptials, colloquially referred to as “pre-nups”, aim to protect both parties’ interests by protecting personal and/or business assets and managing the expectations of everyone involved.

 

As prenups are a relatively new phenomenon in the UK – the first one was administered by the Supreme Court in 2011 – it’s not uncommon for UK citizens to have questions about them. Here, we try to answer the most common questions about prenuptial agreements; if your question doesn’t appear, please get in touch with one of our team.

When to Consider a Prenuptial Agreement

You might want to consider discussing a pre-nup with your partner when either of you owns real estate, considerable assets (stock options, savings, inheritance, material possessions etc.), business assets or significant retirement benefits. If either of you has substantial income or considerable debt, it is also wise to get a prenup. Furthermore, prenups are a great way of proactively dividing assets if either of you has been married before or has children with a previous partner.

How to Negotiate a Prenup

By their very nature, prenups are negotiated between partners who intend to spend the rest of their lives together – this is why it is important to bring the topic up with care and consideration for each other’s needs and feelings. Sitting down together long before your wedding date at a time when both of you are in a good place will take some of the pressure off and increase the chances of the discussion running smoothly. If you are nervous about the negotiations, consider asking for help from a mediator, counsellor or religious advisor.

How to Get a Prenuptial Agreement

If you and your partner have decided to get a prenup, you should seek legal advice from an experienced lawyer who will guide you through the process and help ensure your agreement cannot be considered manifestly unfair.

Who Can Witness a Prenuptial Agreement?

As a part of the prenup process, your signatures must be witnessed by two independent individuals, one for each party. The witnesses must not be family members, should be over the age of 18 and should have full mental capacity. Each witness will need to sign the document and state their name, current address and occupation in the spaces provided.

Can a Prenuptial Agreement Protect Future Earnings?

Yes, a well-drafted prenuptial agreement may protect future earnings. Those starting businesses or facing the prospect of taking over a family business or other substantial asset in the future often include a clause about future income in their agreement.

Can You Challenge a Prenup?

In the UK, pre-nups carry heavy evidential weight within the Family Court. So far, the only cases in which they have been waived are when the agreement is deemed unfair to the reasonable requirements of any children of the marriage. The autonomy of the partners who entered into the agreement is usually considered a given, and ring-fencing non-matrimony property is not considered unfair.

How Does a Prenuptial Agreement Affect a Will?

Ideally, an up-to-date last will should state the same things as a prenup. However, when it doesn’t, courts tend to rule in favour of prenuptial agreements provided they were fairly negotiated between the spouses. In these cases, the agreement will take priority over a deceased partner’s last will.

When entering into a prenuptial agreement, always be sure to seek guidance and advice from an experienced family law firm that knows your case inside and out. A well-negotiated and documented prenup will ensure that your agreements are reasonable and fair to both parties. Contact Cordell & Cordell family lawyers to benefit from the knowledge and experience of over 200 solicitors across the UK and the US.

Last updated: April 23rd, 2018

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