Couples planning to marry or enter a civil partnership may want an agreement to determine what they intend to happen to their money and property if the marriage breaks down.

In England and Wales, prenuptial agreements are not strictly binding in the event of a divorce, but the terms of the agreement may be decisive in the event of a subsequent court dispute.

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Why is signing a prenuptial agreement a good idea?

A prenuptial agreement shows how your assets will be shared if you separate from your spouse.

There are several reasons to enter into a pre-nuptial agreement, even if you do not have significant pre-marital assets to protect.

A prenuptial agreement should be considered if there are certain assets that you would like to ring-fence before getting married. 

You may want to enter into a prenuptial agreement for the following reasons: 

  • To protect assets for children from a previous marriage; 
  • To protect assets that you owned before the marriage; 
  • To safeguard family gifts or inheritance either already received or anticipated in the future;
  • To exclude non-marital assets from being divided in the event of a divorce; or
  • You have a connection with or property in another jurisdiction.

The above is not an exhaustive list. 

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How should I ask my Fiancé(e) to sign a prenuptial agreement?

Many people are uncomfortable addressing the topic of prenuptial agreements out of fear that they will harm their relationship or offend their future spouse. 

Talking about having a prenuptial agreement can be challenging, and suggesting a prenuptial agreement can be daunting.

However, you can take steps to prepare for a positive discussion.

  • Explain the purpose: It is important to discuss with your fiancé(e ) their financial expectations for the marriage and to be open with your fiancé(e ) about why you want a prenuptial Agreement and what assets you wish to be protected. 
  • Introduce the topic well ahead of the wedding: It is best to have the conversation as early as possible as the agreement needs to be signed between 28 days to 6 weeks before the wedding ceremony, so you need to factor in time to negotiate the pre-nuptial agreement. This can take a few weeks to organise as part of the process involves disclosing details of each person’s assets to the other.  
  • Be collaborative and fair: It is important to be transparent and honest with your future spouse about your financial expectations if the marriage fails. An agreement which leaves one spouse homeless is unlikely to be regarded as a fair prenuptial agreement and might be overturned by the court.

When should I ask my Fiancé(e ) to sign a prenuptial agreement? 

It is essential that you talk to your fiancé(e ) sooner rather than later because it can take several months to finalise the agreement, which must be signed 28 days or more before the wedding. 

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Seek independent legal advice

Drafting prenuptial agreements requires careful consideration to ensure that they are effective and full financial disclosure from both parties.

Both parties to a prenuptial agreement must obtain independent legal advice to ensure that the agreement is not set aside on the grounds of coercion, the terms being unfair or a party not having understood the consequences of entering into such an agreement.

All couples contemplating remarriage should consider the protection afforded to pre-marital wealth by a prenuptial agreement.

Failure to make reasonable financial provisions for a spouse in a Will may inadvertently lead to a challenge against your estate in the event of your death by your widow(er), which may have unanticipated consequences for your children.

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If you are planning to marry and want to ensure that certain assets are protected from claims for financial provision on divorce, you can contact our Family Solicitors below.