Prenuptial agreement

About this document

Nobody enters into marriage or civil partnership expecting it to end. However, all relationships change over time, usually in circumstances that no-one can foresee. Sometimes it is prudent to plan for the worst in the expectation that it won't occur.

This simple pre-marital agreement states that each party will retain the assets, property and possessions he and she each owned when he and she entered into marriage. It has been written for couples for whom financial support from the other is less important, perhaps because the partners have already accumulated enough wealth during their lifetimes to support themselves independently. The document seeks to protect ownership of that wealth, not to ensure one is supported by the other.

Of course, the agreement does provide for assets jointly bought, full disclosure and other elements crucial to acceptability by a court.

Why use this prenuptial agreement

• provides security during and after marriage to both people
• avoid future disputes over how assets should be split and what each person contributed
• saves legal costs
• helps ensure that the people you choose (such as children from an earlier relationship) inherit your wealth
• prevents your wealth from being given away shortly before break-up
• helps protect business assets from being split and sold
• makes a separation less emotionally stressful by removing the need to negotiate over many things

Is a prenuptial agreement legally binding?

Prenuptial agreements are not legally binding. A UK court may take one into consideration, but remains free to impose any other financial settlement the judge rules appropriate to the circumstances, particularly with respect to arrangements for children.

In most circumstances, however, a financial settlement will follow a prenuptial agreement if the Court is satisfied that the agreement:

• is fair and reasonable, both when it was made, and at separation

• is flexible and allows for review and modification at a later date, such as following the birth of any children

The parties should be able to demonstrate that:

• each person considered and understood the implications of entering into the agreement, and were truly happy with it.

• it was not signed under duress or coercion, and not entered into in haste

• each person gave full disclosure about their personal wealth at the time of signing

To satisfy these conditions, couples are likely to have to:

• take separate, independent legal advice (not necessarily from a solicitor) as to the implications of their agreement

• sign the agreement well before the marriage or civil partnership so that there is a sufficient “cooling off period” in which to back out or change the terms

It is important to understand that in a divorce settlement, the Court retains complete discretion to order the division of the assets. Whether you create your prenup yourself, or ask a solicitor or family law expert to do it for you, there is no guarantee that your wishes will be followed exactly.

Statute law relating to divorce, primarily the Matrimonial Causes Act 1973 sets out what a judge should consider when dividing assets. The principles should be applied to the personal circumstances of the marriage break up. However, each judge will form his own personal view. That often leads to unexpected decisions that benefit neither person. A well written prenuptial agreement is highly likely to influence a judge's decision in a way that both partners would find sensible.

Alternative documents

We also stock another agreement that covers a much wider range of possible outcomes and that also deals with matters to be agreed during your marriage.

That alternative version enables you to define your intentions over broader areas. There is extensive coverage of property, possessions, investments.

Children arrangements are included, but covered broadly and shortly, because circumstances at divorce can be very different to those at marriage and a judge will make an order based on what he sees at the time.

Agreement contents

This agreement covers the following:

• the parties’ personal details
• relevant dates and application of principles likely to be required by law
• that property of each party remains his own
• prevention of one person reducing joint wealth before separation by giving away assets
• what should happen if one of you should die