Looking for peace of mind?
When it comes to marriage, a prenup agreement can offer peace of mind and financial protection. Partner, Robin Charrot has substantial experience in prenuptial agreements and Evolve Family Law has the legal expertise combined with a sensitive approach to supporting you with your prenuptial agreement.
Looking after you
Not all family lawyers are the same. It takes a special kind of solicitor to prepare a prenup agreement that protects you and your family whilst not generating unease or conflict in the run-up to your wedding day.
Fairness and kindness
For a prenup agreement to protect you it needs to be fair to your husband or wife so your prenup solicitor needs to have the experience and expertise to balance preparing a prenup agreement that provides a fair financial settlement whilst protecting you and ensuring your best interests are covered.
Why choose the family law solicitors at Evolve Family Law?
Louise Halford and Robin Charrot founded Evolve Family Law. They are family law solicitors dedicated to helping couples plan for their futures by enabling them to make proactive and informed choices. Robin and Louise are both strong advocates of the benefits of prenuptial and postnuptial agreements to give peace of mind and to allow for estate planning to take place.
Prenuptial Agreements – Your Questions Answered
Why sign a prenuptial agreement?
Prenuptial agreements are increasingly popular as engaged couples and their extended families are more willing to look at the ‘what ifs’ as they are more aware of the financial impact of divorce on family wealth. A prenup agreement isn’t just for the ultra-wealthy or to protect against a potential ‘gold digger’. They are as much about providing the financially weaker spouse with certainty and security. A prenuptial agreement is now a key wealth protection tool for individuals who are going into a marriage having already built up some wealth or for families looking to pass money down the generations. A prenuptial agreement is just sensible planning, in much the same way as making a will, taking out life insurance or signing a lasting power of attorney. If you are already married and are looking for a postnuptial agreement, we can also help you.
What is a prenuptial agreement?
A prenuptial agreement is a written contract between a couple made before their marriage that specifies what will happen if the marriage breaks down. In a divorce, judges in the family courts have a very wide discretion to divide a family’s finances according to what the judge thinks is fair. This includes wide powers to transfer or sell any type of asset (including company shares and pensions) and share future income, possibly without any endpoint. The difficulty for all divorcing couples is that the discretionary element makes it incredibly hard to predict what a divorce financial settlement will be. This provides a lot of scope for arguments, uncertainty, delay, and high legal fees.
A prenuptial agreement is designed to regulate what will happen with the couple’s wealth should the marriage break down. This substantially narrows the extent of judicial discretion. Prenup and postnup agreements are therefore commonly used to:
- Limit claims to less than half of all assets.
- ‘Ring-fence’ specific assets.
- Limit the amount and duration of any maintenance payments.
- Prove what assets are brought into the marriage, and by whom. These assets are called ‘non-matrimonial property’ and are less likely to be divided equally on divorce because they are not the product of the marriage.
Is a prenuptial agreement binding?
As a result of a large number of court cases on prenup agreements the family courts will now be very heavily influenced by a prenup or postnup agreement, as long as:
- It was freely entered into.
- The spouses fully appreciated the implications of entering into it.
- The agreement is not significantly unfair to one spouse.
How do I ensure my prenuptial agreement will be binding?
To make a prenup or postnup agreement heavily influential to any divorce financial settlement Evolve recommends that:
- Each party engages their own lawyer.
- Material financial information about assets, income and debts is provided by each party.
- The lawyers negotiate the terms of the agreement.
- The terms of the prenup or postnup agreement allow for any children of the family to be properly financially supported.
- The prenup or postnup agreement should not be outrageously unfair to one party, for example, by not meeting their basic financial needs in the event of a divorce.
- A prenup should ideally be finalised at least twenty-eight days before the wedding, but this is not a hard and fast rule.
What is the point of a prenuptial agreement?
Prenuptial agreements are designed to stop or limit financial claims if a couple split up after marriage. Most people don’t realise that after marriage a spouse can make claims for spousal maintenance, cash, property and pensions. A prenuptial agreement sets out how you plan to sort things out if there is a future separation. The agreement is intended to give you both peace of mind so that you both know where you stand financially.
What happens if we don’t sign a prenuptial agreement?
If you don’t have a prenuptial agreement in place then if you split up then either one of you could bring financial claims. The claims could be over assets owned by one of you prior to the marriage or inherited money or gifts. Without a prenuptial agreement in place, these assets are more vulnerable. The costs of reaching a financial settlement are likely to be a lot higher if you don’t have a prenuptial agreement in place as one or both of you may feel angry or hurt and not be able to agree on what is a fair split of assets.
Who should sign a prenuptial agreement?
Anyone who is planning on getting married should consider a prenuptial agreement and get prenuptial agreement legal advice on whether an agreement would be a worthwhile exercise for you. Evolve prenuptial agreement solicitors can look at your current personal and future financial circumstances. For example, in the future, your parents may leave a sizeable legacy or they may want to start to gift money to you during their lifetimes to reduce the eventual inheritance tax bill.
As a rule of thumb, a prenuptial agreement may be a sensible option if one or both of you:-
- Already owns a house, especially a cherished property.
- Already owns a business or holds shares in a family company and you want to ensure that the future of the business is not jeopardised by a fellow shareholder/director having to sell or transfer their shareholding as a result of a
- Already has substantial savings or a pension.
- Is a beneficiary of a discretionary trust fund, whether or not the fund has in the past or is currently making any distributions of income or capital.
- Is likely to inherit money.
- Is likely to receive substantial gifts from parents or extended family as part of their inheritance tax planning.
- Have parents who have put their property in the name of you and your siblings.
- Have been married before or have children from previous relationships. This is especially important if you didn’t get a financial clean break order from a former spouse.
- Would like a measure of certainty about how things will be sorted out in the event of a separation and would want any split to be amicable and civilised.
The best advice is to ask whether a prenuptial agreement is likely to be of benefit to you. As specialist prenuptial agreement solicitors, we can tell you whether an agreement would be a good idea and advise you on your options.
What is essential for a prenuptial agreement?
There are four crucial aspects to a prenuptial agreement:
- Signed before the wedding – preferably twenty-eight days.
- Financial disclosure.
- Independent advice;
- The agreement is fair to both of you and meets your needs.
When should a prenuptial agreement be signed?
The agreement should be signed within twelve months of the planned wedding and ideally not later than four weeks before the wedding date. Sometimes agreements are signed within the last few weeks before the wedding but it is not recommended as a prenuptial agreement is something that you should aim to sort out well in advance of the last-minute preparations and stress of the big day. The agreement may carry less weight if it is signed late.
My fiancée doesn’t know how wealthy I am. If I sign a prenuptial agreement, will I have to say what I own?
This is often a quandary for couples who keep their finances separate and so they don’t know the detail of what their partner owns or earns or their partner doesn’t know about the existence of family wealth or trusts. For a prenuptial agreement to carry weight the two of you need to know what the other has or may get in the future, for example, as a result of a trust distribution. This is because in order to come to an informed agreement and take the advice you both need to know about the other’s circumstances. Most people recognise the need to give information about finances in the agreement as in that way it will carry greater weight.
We are agreed on a prenuptial agreement but my fiancée doesn’t want to use a prenuptial agreement solicitor to give advice. Do we both need separate solicitors?
An engaged couple needs separate legal advice on a prenuptial agreement. If a fiancée doesn’t get their own separate legal advice on the agreement, then it will carry less weight. The agreement is an important legal document, and just in the same way that you need a solicitor to sort out the title to a property when buying a house, you both need prenuptial agreement solicitors to advise you on the prenuptial agreement. There are normally options on what can go into the agreement so you both need advice about what will best work for you.
Many engaged couples are fearful about asking a prenuptial agreement solicitor to get involved with their prenuptial agreement as they don’t want any disagreements with their fiancée or their extended family. That is totally understandable but the job of specialist prenuptial agreement solicitors is to make you aware of what can go in the agreement, what may be good options for you and to sensitively finalise an agreement that works for both of you.
My fiancée doesn’t want any money if we split up. Can the prenuptial agreement say that?
The prenup agreement can say that your fiancée won’t get any money if you split up but, depending on your and your fiancée’s financial circumstances, it may not be in your best interests for the agreement to say that they won’t get anything. This is because even if your fiancée knows how much you are worth, has their own prenuptial agreement solicitor and the agreement is signed at least four weeks before the wedding, the agreement has to be fair and meet needs. The agreement that says a fiancée won’t get anything may be OK if you both have the same amount of wealth and income or if you are only married for a very short period. However, if you have children together or enjoy a long marriage the agreement may not be fair and therefore carry less weight. That is why it is important to get advice from prenuptial agreement solicitors on what should go in the agreement so that the document is as effective as possible in protecting family wealth.
The house is owned by me. Why do we need a prenuptial agreement if it is my property?
When a couple gets married, a spouse is automatically is entitled to make financial claims on separation, including claims over property, shares, investments, cash, pensions and businesses owned by one spouse. They can also ask for maintenance. That means sole ownership of a property or assets doesn’t protect the assets from claims on divorce. The prenuptial agreement is designed to stop or limit those claims.
We don’t know where we will live in the future as we don’t own a property. Can we still sign a prenuptial agreement?
Yes, you can. A prenuptial agreement often has to look forward to future events, such as the arrival of a child or the birth of additional children, the receipt of a gift or legacy or the purchase of a property.
Do I need a prenuptial agreement as I am a beneficiary of a trust? Does the trust protect the family money?
A trust is a very useful means of protecting family wealth but it is only one protective measure. Most trustees recommend that a beneficiary of a discretionary trust fund should also sign a prenuptial agreement prepared by specialist prenuptial agreement solicitors. The agreement can record that any trust money is ring-fenced and protected from any claims on divorce.
Do I need a prenuptial agreement as I am a shareholder in a family company and there is a shareholder agreement?
Yes, you do. A shareholder agreement is drawn up to regulate how the company and shareholders will operate. Whether your future spouse is or isn’t a shareholder in the company the shareholder agreement won’t stop your spouse from being able to bring financial claims against your shareholding on divorce. The financial claim could cripple the company. A carefully prepared prenuptial agreement by specialist prenuptial agreement solicitors will complement the shareholder agreement.
We own a property abroad. Do we need a prenuptial agreement in the UK as well as where we own the property?
Possibly. A lot will depend on where the property is owned and by who. Robin Charrot is a Fellow of the International Academy of Family Lawyers, the world’s leading organization of expert international family lawyers and, where there is potentially a need for more than one prenuptial agreement, he works with other specialist prenuptial agreement solicitors in different countries to make sure that you are protected.
My fiancée isn’t a British citizen. Where should we sign a prenuptial agreement?
If you are going to be living in the UK and have a property in the UK, then probably the prenuptial agreement needs to be prepared and signed in the UK but much will depend on your individual personal and financial circumstances. In some family situations, couples elect to sign mirror agreements in the other relevant country to cover the possible multiple jurisdictions as a result of international connections or wealth. In any situation where there is any possibility of a choice of jurisdictions, it is vital to get expert advice from prenuptial agreement solicitors. Not doing so could have a tremendous impact on whether or not the prenuptial agreement is effective and the cost of a divorce.
How do I introduce the idea of a prenuptial agreement?
Attitudes to prenups and postnuptial agreements are changing, especially amongst those who have gone through a divorce or know a close friend or family member who has done so. Prenups and postnup agreements are increasingly the norms, as they are in the USA and most of Europe. Despite this, it can be awkward to raise the topic of a prenup, so here are a few suggestions about how to do it:
- Discuss a prenup as part of more general financial planning when contemplating marriage, such as the need to make new wills.
- Most people provide for the possibility of bad things happening in other areas of their life, for example through insurance, so why not provide for the possibility of divorce?
- Everyone knows divorce can be stressful, drawn-out, expensive and unpredictable. A prenup or postnup agreement provides certainty and security for both parties and will cut out a lot of the delay and expense.
- If there are children from a previous relationship a prenup agreement can ensure money built up during that relationship is passed to the children.
- Parents could suggest a prenup or postnup agreement as a condition of passing their wealth down to the next generation, either during their lifetime or after their death.
- Partnerships or companies can have a firm-wide policy that all existing and incoming business owners must have a prenup or postnup agreement.
- Entering into a prenup or postnup can demonstrate that a couple is getting married for the right reasons.
We signed a prenuptial agreement a few years ago and we are happily married but our financial circumstances have changed. Do we need to do anything?
That depends on what the prenuptial agreement says, how your personal and financial circumstances have changed and what the original agreement said about when the agreement would be reviewed. The best option is to get the document reviewed by a prenuptial agreement solicitor as if your circumstances have changed a lot then the original agreement may no longer meet your respective needs. If it doesn’t do that, then it won’t carry much weight and therefore it should be reviewed.
