Prenuptial Agreements

Prenuptial agreements in England and Wales

A prenuptial agreement (or prenup) is a legal agreement made by a couple before marriage. It will set out how financial arrangements and assets should be dealt with during the marriage and in the event of divorce.

A well‑drafted prenuptial agreement can play a significant role in a divorce settlement, particularly where one or both parties enter the marriage with existing wealth, property, or business interests.

Prenups are an effective way to protect assets and provide financial certainty. But they must be prepared correctly to be given weight by the court. It’s also important to review a prenup if circumstances change, such as having children or acquiring new assets, to make sure the agreement remains fair and up to date.

Postnuptial agreements are very similar, but are made after marriage. We can help with both.

Are prenuptial/postnuptial agreements legally binding?

Contrary to popular belief, prenups are not binding under English law. However, sensible and reasonable agreements are increasingly determining the type of financial settlement made by the judge in divorce proceedings.

English law is therefore now leaning in favour of upholding prenuptial agreements if it was freely entered into by each party with a full appreciation of its implications.

When should I make a prenuptial agreement?

If you decide to get married but don’t draw up a prenuptial agreement, then once you are married all your assets will be combined, regardless of whether they are just in your name or in both your and your partner’s name.

This means that if you get divorced then the assets you acquired both before and during the marriage won’t necessarily pass straight back to you. Usually, the Court will use a 50/50 split of all the assets as a starting point. They will then take several factors into account such as the length of the marriage, the contribution each party has made, the health of each party and your standard of living to determine the final settlement.

By drawing up a prenup, you can ensure that your assets are protected in the event of divorce.

The agreement should be signed at least 28 days before the date of the wedding to avoid duress.

What’s included in a prenuptial agreement?

Prenuptial agreements are tailored specifically to your situation. They often include an inventory of each of your assets and information on how these will be treated during the marriage and how they will be split if the marriage breaks down. You can also include details of assets that you do not want to split upon divorce.

Prenuptials usually include assets such as:

• Income
• Savings in bank accounts
• Property held individually or jointly
• Pensions
• Stocks and shares
• Inheritance
• Business interests
• Items of sentimental value
• Family trusts

What is not included in a prenuptial agreement?

Factors that cannot be included in a prenuptial agreement are:

• Decisions on child support and child custody
• Waivers of child maintenance
• Lifestyle matters
• Personal matters
• Illegal or unfair matters
• Provisions that are unfair/fail to meet the basic needs of one party

It is possible to include some things – like pets – in your agreement, but we can advise you based on your circumstances.

What is the difference between a prenup and a post-nuptial agreement?

The main difference between prenuptial and post nuptial agreements lies in their timing: a prenuptial agreement is entered into before a couple marry or form a civil partnership, whereas a post nuptial agreement is made after the marriage or civil partnership has taken place.

Although the timing differs, both types of agreement are designed to outline how a couple’s financial affairs would be dealt with if the relationship were to end. Prenuptial agreements are generally used as a preparatory step before marriage, giving couples an opportunity to discuss and agree financial matters in advance.

In contrast, postnuptial agreements are often entered into after the marriage has begun, usually following a change in circumstances such as receiving an inheritance, a substantial change in financial position, or a wish to put clear arrangements in place after a challenging period in the relationship.

In England and Wales, neither prenuptial nor postnuptial agreements are legally binding as a matter of course.

However, the court may attach significant weight to such agreements. This is applied when they are entered into freely, with full financial disclosure and independent legal advice, and where their terms are fair in the circumstances prevailing at the time of separation.

In some cases, postnuptial agreements may carry greater persuasive weight, as they are entered into once the parties are already married and therefore have a fuller appreciation of the legal implications of the marriage. Nonetheless, the weight given to either type of agreement will always depend on the individual facts of the case.

Do you need a lawyer to draft a prenup?

You can draw up a prenuptial (or postnuptial) agreement yourself, but if the court finds that it doesn’t meet their requirements then it could be invalid or unenforceable.

It is also a requirement that each party seeks independent legal advice prior to drawing up the prenuptial agreement. This is to ensure that:

• the agreement is fair and reasonable
• no undue pressure is being put on one party or the other to sign
• all assets are disclosed by each party
• both parties understand the nature and implications of signing the prenuptial agreement

So it’s highly advisable to use a family lawyer you can trust to prepare or review your prenup.

Rothera Bray’s expertise in prenuptial and postnuptial agreements

Our experienced team of family solicitors have the knowledge and expertise to prepare prenuptial and postnuptial agreements that will stand up in court. You can visit us at any of our eight offices across the East Midlands, or make an appointment for a remote session.

We’ll ensure that the agreement is fair and reasonable and both parties fully understand its implications. We’ve handled thousands of divorces, so we can make it likely that your assets will be protected as planned, should the worst happen.

For further information, get in touch or read our guide to prenups and post-nups here.