Should I sign a prenup?

In England and Wales more people are getting married and divorced in midlife. According to a recent study, between 1990 – 2019, the rates of first marriages in midlife increased by 74% for women and 45% for men. The study also found that about 10% of people marrying for the first time are ages 40 to 59.

As people often acquire more assets as they get older it is important for those marrying in midlife to consider a prenuptial agreement (prenup). Linda Pope answers some frequently asked questions posed by those considering a prenup.

1. What is a prenup?

A prenup is a contractual agreement made between a couple before they marry which specifies who gets what if the marriage or civil partnership ends. Prenups can set out who owns what, what will happen with the couple’s assets, debts, and income if they separate and divorce, and the country in which divorce proceedings should take place.

2. Why might I need a prenup?

To protect assets

If you own a business or inherited a holiday cottage, you might seek to protect those assets by specifying they remain yours if you divorce. If your partner has significant debts, you might consider protecting your own assets, such as property or savings, from their debts.

To plan for the future

If you have children from a prior relationship, who are financially dependent upon you or you plan to start a family with your intended spouse, you will need to consider how educational costs and other expenses will be met between you. You will also need to ensure any children from your previous relationship are protected financially if your planned marriage breaks down.

Negotiating a prenup enables couples to work out what is important to each of them and to settle disagreements early on. If your partner really wants to keep their holiday cottage, you could have an open and frank discussion about how you will be compensated for any loss of interest in it. For example, your partner might consider agreeing to you having a larger interest in the family home.

3. Is it true prenups can be challenged?

Yes, there are some circumstances in which you or your partner could decide to challenge your prenup if you later divorce or dissolve the civil partnership. However, there are things you can and should do before signing your prenup to increase the chances of it being upheld, including:

· Obtaining independent legal advice

You and your partner should obtain independent legal advice on the implications of the prenup and include a clause in the prenup which reflects this. If you earn more than your partner, consider paying their legal fees if they are unable to. Ensure your lawyers keep detailed notes of conversations/meetings.

· Providing full financial disclosure

You and your partner should carry out a full financial disclosure of all assets, liabilities, income, and pensions with your solicitor’s assistance.

· Ensuring your prenup is fair and meets you and your partner’s needs

Your solicitors may consider including a clause requiring regular reviews to reflect changes arising following your wedding. Your family may grow, or your partner may become ill which could impact their ability to work. Circumstances such as these will impact the fairness of your prenup, so include mechanisms which accommodate for change.

· Enter into your prenup a minimum of 28 days before your wedding/civil partnership registration

This gives you and your partner time to consider its implications. If a prenup is signed at the final hour before your wedding, your partner might try and argue later down the line they felt pressured to enter into the agreement.

Examples of what not to do include:

· Pressuring your partner to sign – duress, undue influence, or exploitation of a dominant position may affect the validity of the prenup.

· Signing shortly before your wedding/civil partnership.

· Signing the prenup without legal advice and full financial disclosure.

· Signing disclaimers, for example, a disclaimer that you have received legal advice when you have not.

4. I don’t really want to enter into a prenup, but it will make my partner happy. Shall I just sign it and challenge it later down the line?

Whilst prenups can be challenged, you should assume that the court will enforce your prenup, if it has been entered into willingly by you and your partner, with a full understanding of its implications, unless in the circumstances it would not be fair to hold you and your partner to the agreement.

5. If prenups can be challenged, what is the point of signing one?

Even if your partner later challenges your prenup, its very existence could have significant implications on a financial settlement reached on divorce. If your partner argues your prenup does not meet their needs and is partly successful in their argument, the court may decide to depart from the prenup, only to the extent of meeting their needs and leave the remainder of the agreement intact.

We can help

For more information on prenups please contact specialist matrimonial solicitor, Linda Pope.

The contents of this article are for the purposes of general awareness only. They do not purport to constitute legal or professional advice. The law may have changed since this article was published. Readers should not act on the basis of the information included and should take appropriate professional advice upon their own particular circumstances.