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What Is a Pre-nuptial Agreement?

Getting married or entering into a civil partnership is an exciting life change, and there’s a lot to think about when you’re getting ready for such a major life event. If you and your partner have significant assets then a pre-nuptial agreement can be a good way of ensuring that you’re both protected as far as is legally possible in the event that the relationship comes to an end.

What is a Pre-nuptial Agreement for?

A significant proportion of marriages end in separation or divorce. The end of a close long-term relationship is highly emotional, which means it’s easy for the end of such a relationship to turn into an acrimonious situation.

Often, part of the reason for this is that separating or divorcing couples fight over the division of marital assets. One way this problem can be partially prevented is with a pre-nuptial agreement. Many people think of these agreements as somehow distasteful, because they think that if the couple are “money-minded” then they must not really be in love. However, having a pre-nuptial agreement is a very effective way of preventing couples from fighting over money and property, and ensuring they don’t have to spend time and money fighting in the divorce courts. Although pre-nuptial agreements are not currently legally binding in the UK, a Judge is likely to take into account the existence and contents of such an agreement, subject to certain safeguards having been met.

A pre-nuptial agreement is simply a document that lists a couple’s jointly and separately-owned assets and debts, and details what will happen to them in the event that the relationship ends. For example, if one party has a certain amount of cash or invested wealth, the pre-nuptial agreement might stipulate that that money remains the sole property of that party if the relationship ends.

Why Consider a Pre-nuptial Agreement?

The traditional view of a pre-nuptial agreement is that they’re used when one partner is significantly wealthier than the other. However, these agreements aren’t just for people who are wealthy or who own valuable assets. They can be useful for anyone who is getting married or entering into a civil partnership, regardless of how much personal wealth or property they own.

Some situations where a pre-nuptial agreement can be useful include:

  • You’re getting married and want to ensure your personal assets are protected.
  • You anticipate receiving an inheritance in the future and want to ensure that it can’t be touched by your spouse if the relationship ends.
  • You’re getting married and want to ensure that you and your partner will avoid an acrimonious battle over assets and property if the marriage ends.
  • You want to protect your assets from a first marriage, in order to ensure you can provide for the children of that marriage in any event.

What are the Requirements for a Pre-nuptial Agreement?

There are no real rules about how assets and possessions should be split in a pre-nuptial agreement, but there are some rules about how the terms of the agreement should be made. It’s important to follow these rules to ensure that the pre-nuptial agreement will stand up as far as possible in court.

First, it’s important that both parties have independent legal representation. This ensures that they both have a solicitor who is acting in their best interests, that they both understand the ramifications of the pre-nuptial document, and that they both sign the document willingly. All of these factors are important to ensure that the agreement will stand up in the future.

Another important aspect of a pre-nuptial agreement is that the contents of the agreement—and the decision to make the agreement itself—should be careful and considered. That means there should be no indications that the agreement was made hastily or carelessly. If there are any such indications, the agreement could in the future be challenged and declared invalid.

Each party should fully and honestly disclose their financial situation, and all of the details should be included in the agreement. It’s also important that the terms of the agreement are clear and detailed, to ensure there’s no possibility of anything being misinterpreted.

Another point to consider is what might happen if the circumstances of the marriage change significantly. For example, if children are born, if one party quits their job to take care of the children, or if further assets are gained, how will this affect the division of existing property? As many of these circumstances as possible should be taken into account, or alternatively the couple might agree to draft a new pre-nuptial agreement if it should be necessary in the future.

What Information should a Pre-nuptial Agreement Include?

The most important information to include in a pre-nuptial agreement is a list of all assets—including cash, investments, property, and other assets—and all debts, owned separately by each party, and owned jointly by both. The scope of the document can then be adjusted depending on what the couple wants the document to achieve.

For example, some couples just want a document that stipulates what assets are owned solely by each person at the time of their marriage, so that any confusion can be avoided if the relationship ends.

Other couples might want something a bit more complicated, that stipulates how asset division might change depending on whether they have children or buy a house, or whether their personal or joint financial status changes significantly over their marriage.

Sometimes, a pre-nuptial agreement might stipulate what happens if the marriage ends under certain circumstances, for example if one partner is unfaithful. It’s important to note, however, that the more an agreement deviates from the standard legal model, or the more grey areas it contains, the less likely it is to hold up in court.

No matter what the substance of a pre-nuptial agreement, it’s always important that the terms of the agreement be as detailed and as clear as possible. This is vital, because the more detailed and clear the document is, the less likely it is for any challenge of the document to be successful.

It’s also a good idea for a pre-nuptial agreement to include terms for its own revision. For example, it might include a requirement that the document be reviewed annually, or redrafted entirely after a certain period of time.

How can a Solicitor Help You with a Pre-nuptial Agreement?

A pre-nuptial agreement can be drafted and signed without the help of a solicitor, but when this is the case there’s a high risk that the agreement could be successfully challenged in court. This is because one of the most important aspects of a valid pre-nuptial agreement—independent legal representation—is omitted. To ensure that a pre-nuptial agreement will stand up now and in the future, it’s vital that both parties in the relationship have their own legal counsel. And ideally, both parties should be involved in the drafting of the agreement.

Regardless of your financial worth, a solicitor can provide some essential help and advice when it comes to creating a pre-nuptial agreement that works for you and for your spouse-to-be. They can:

  • Help you decide the best way to protect your assets.
  • Help you draft a pre-nuptial agreement that meets lawful requirements, is clear and detailed, and will stand up to any challenges.
  • Help you interpret and understand the terms of a pre-nuptial agreement drafted by your spouse-to-be.
  • Represent you in a case where you wish to contest or defend a pre-nuptial agreement you co-signed with your partner.

Pre-nuptial Agreements in England Versus Scotland

Pre-nuptial agreements are interpreted and upheld differently in England and Wales than they are in Scotland. In Scotland, pre-nuptial agreements are legally binding. However, the agreement can be overturned by the courts if it is deemed to be unfair at the time it was signed. For example, if one party was pressured into signing, or didn’t receive independent legal advice at the time of signing, the agreement might be overturned.

In England and Wales, pre-nuptial agreements aren’t necessarily legally binding, as they are held to a fairness test that involves looking at the circumstances of the marriage at the time it ended. This means that the courts won’t automatically uphold a pre-nuptial agreement. However, it’s more likely than not that a pre-nuptial agreement is taken into account, and upheld, providing it can be shown that the agreement is fair to both parties.

For further information or assistance please contact Sadhana Joshi, Solicitor and specialist in Family Law – 0203 540 7665 email

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