What is a prenuptial agreement?
A prenuptial agreement (also known as prenup, prenup agreement, premarital agreement, or prenuptial contract) is a legal contract used when two people, who intend to get married or enter into a civil partnership, want to sort their financial affairs in case they decide to divorce or separate in the future.
Particularly, they will want to decide now how future property owned will be divided, make sure that current property that they bring into the marriage remains theirs, and whether one should provide spousal support to the other.
Why do I need a prenuptial agreement?
No one goes into marriage or a civil partnership expecting it will end in divorce. Separation can be made less emotionally stressful by removing the need to negotiate over many things at the same time that your life changes in many other ways.
Making a prenup is also a way of keeping your real reasons for being together separate from financial matters, which might otherwise introduce doubt into the relationship.
A premarital agreement can:
- set out personal assets that belong to each person
- separate property acquired before marriage or civil partnership that is intended to remain under original ownership should the marriage fail
- separate debts owed by each partner so that they remain separately liable for their debts
- lay down a procedure for the division of any shared property and assets (property acquired and assets accumulated during relationship)
- deal with business ownership issues, so far as possible given any shareholders agreement
- spell out the financial obligations that will be owed by each partner to the other
- ensure that children from previous marriages are financially secure and do not lose their rights to inheritance
- if you are remarrying, protect the settlement you may be receiving from your previous relationship
Above are just a few examples of the important matters you need sorted before you go into a marriage or a civil partnership.
After you are married or in a civil partnership, you cannot create a prenuptial agreement.
You will be able to create a post nuptial agreement. However, you should be wary of it as, while similar to a prenup, a post nuptial agreement may offer lesser asset protection.
The reason is that once you are married or a civil partnership, some of your assets could already be considered marital property.
Are prenuptial agreements legally binding?
Prenups are not binding in law. However, that it not to say that a court will not consider an agreement if there was sufficient financial disclosure by both parties and it was freely entered into by them after seeking independent legal advice.
However, in all matters of family law, the judge has the final say as to what is fair, particularly if there are children whose welfare needs to be taken into account.
The case of Radmacher vs. Granatino is the landmark decision which highlights the increasing importance courts give to prenups. In this case, Mr. Granatino was initially awarded 5.8 million pounds of Miss Radmacher's personal wealth. Miss Radmacher appealed and this amount was reduced to 3.6 million pounds, 2.5 million of which was just a loan to be paid back after their children reached the age of 18.
Their prenuptial agreement was the decisive factor leading to the appeal judgement so much so that the appeal judge said that it had become 'increasing unrealistic' for courts to disregard prenups.
How to make sure your prenuptial agreement will be upheld in court
For a prenuptial agreement to be considered by court, it must not conflict with the overriding requirements of section 25 of the Matrimonial Clauses Act 1973.
First, provisions must have been made in the agreement for the welfare of children in the family who under the age of eighteen (or any other dependents).
Other requirements of section 25 are:
- the agreement must be made at least 28 days before marriage
- there should be no pressure or duress to sign - the parties must sign the agreement freely
- full disclosure must be made by both parties of their assets
- it should be fair and realistic
- provisions should be made for children, alive or yet to be born, for child support payments and welfare generally
When will a court not consider a prenuptial agreement?
The court can disregard a premarital agreement if it deems that there have been a change of circumstances that render the agreement inappropriate, for example, birth of children, loss of employment or disability.
About our prenuptial agreement templates
Net Lawman provides two prenuptial agreement templates that help in finding the arrangements that best suit your needs, while also complying with legal requirements so that if your agreement ever comes in front of a judge, it is likely to be upheld.
What is included in these prenuptial agreement templates?
Our full prenuptial agreement template extensively covers property, possession, and investments. It includes detailed provision that guides you in coming to an agreement on, amongst other things, the basis on which you will divide your current and future wealth between you two, spousal support, property rights, children arrangements, dealing with family company or a jointly owned business, and provisions for if one party dies.
Further, it also includes matters to be agreed during your marriage.
As an alternative, we provide a simpler version for couples who are financially independent and where their major concern is the retention of ownership of personal assets they will bring into the marriage, rather than financial security.
While this prenuptial agreement template is focused on protecting ownership of wealth, it also provides for jointly owned assets, full disclosure and other elements crucial to acceptability by a court.