Is a Prenup a Good Idea?

There is still a bit of wariness about raising the topic of a prenup with a fiancée or signing a prenuptial agreement.

In this blog, our Manchester family solicitors look at whether a prenup is a good idea.​

For expert family law advice call our team or complete our online enquiry form.

Is a prenup agreement a good option?

Manchester prenup solicitors are often asked what the point of a prenuptial agreement is if it isn’t legally binding in the English divorce court. However, although a prenup agreement isn’t binding on the English family court, Manchester prenup agreement solicitors say that provided the agreement is drawn up properly it could be given substantial weight. In real terms, if you are a high net worth individual, a prenup could save you millions. If you aren’t a high net worth individual, a prenup agreement is still a good idea because:

• The prenuptial agreement could ring fence or safeguard pre-marriage acquired assets, such as a family inheritance, a trust fund, a family business or farm, or a pension that you contributed to many years before your planned marriage
• The prenup could protect children from an earlier marriage or relationship by making sure that if you get divorced your second wife or husband doesn’t walk away with assets that you brought to the marriage or that you need to provide for your children from an earlier relationship
• If you draw up a prenuptial agreement before the marriage and the terms are fair to both of you the agreement should reduce animosity and legal costs if you decide to separate at a later date

When will a court follow what is in a prenuptial agreement?

If you are contemplating signing a prenuptial agreement then it is essential to know when a court will, or is likely, to follow what is in the prenuptial agreement when ordering a financial settlement as part of divorce proceedings.

There are three potential scenarios if you sign a prenup and either you or your spouse later start divorce proceedings:

1. The divorce court ignores what is in the prenuptial agreement – either because the court doesn’t think that the agreement was drawn up with safeguards in place or doesn’t meet one spouse’s needs
2. The divorce court places weight on the prenuptial agreement and although the agreement isn’t followed to the letter the divorce court makes a financial settlement award that is less generous than it would have made had the prenuptial agreement not been signed
3. The divorce court follows the agreement recorded in the prenup and makes a financial settlement and financial court order in accordance with the provisions in the prenup

You are more likely to get the divorce court to follow options 2 or 3 if the court is satisfied that the prenup was freely entered into by each party to the agreement with a full appreciation of its implications unless in the circumstances prevailing at the time of the separation or divorce it wouldn’t be fair to hold the parties to the terms of their prenup agreement.

It is often assumed that there is no free will involved in signing a prenuptial agreement as either the intended husband or wife has all the power and the other person feels that they have little alternative but to sign the prenuptial agreement if they want to get married. However, prenup solicitors say that every prenuptial agreement should be freely entered into to avoid the divorce court ruling that one person didn’t understand the agreement and therefore shouldn’t be bound by its terms.

To give the prenuptial agreement the best chance of being upheld in any subsequent divorce and financial proceedings, the following requirements should be met:

• The terms of the prenup must be fair and meet the needs of the parties and any children who are dependent on them. If the agreement isn’t fair, it isn’t likely that the agreement will be fully upheld or even partially upheld. A good prenup solicitor can advise on the fairness principle the divorce court uses to guide you on what provisions to put in the agreement
• The prenup was entered into voluntarily with no undue influence or duress and of your own free will and signed and executed as a deed
• There is financial disclosure of each other’s financial circumstances. Financial disclosure is essential even if you are wary about detailing the full extent of your net wealth or your partner is embarrassed about their debts or income. Unless you know what the other has you can’t make informed choices about what should go in the prenup and what would be fair provision if you were to separate
• The prenup should be signed in advance of the wedding. The recommendation by the Law Commission report is that prenuptial agreements should be entered into at least 28 days before the marriage or civil partnership
• Independent legal advice on the prenup is taken. That is to ensure that you both understand the legal consequences of signing the prenup and what you might be gaining or losing by entering into the prenuptial agreement

Should I sign a prenup?

You should only sign a prenup if you are willing to be bound by the terms of the agreement. You should not enter a prenuptial agreement thinking that you can argue, in any subsequent divorce proceedings, that the terms of the agreement are unfair to you. That argument may not succeed if the agreement was drawn up properly with the safeguards in place.

Likewise, if you have substantial pre-marriage acquired wealth or you want to ring-fence specified assets or you don’t want financial arguments at the time of any divorce proceedings a prenup can be a sensible option for both you and your intended husband or wife.

We are Manchester Prenup Solicitors

Manchester and Cheshire-based Evolve Family Law solicitors specialise in preparing relationship agreements and advising on prenuptial agreements.

For advice about a prenuptial agreement or relationship agreement or other aspect of family law call us or complete our online enquiry form.