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By Neil Johnstone, Barrister.

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In this definitive guide I’ll teach you everything you need to know about prenuptial agreements in the UK. 

Including:

  • Are prenups legally binding in the UK?
  • How much do they cost?
  • Can a prenup be challenged?

Let’s get to it...

What Is A Prenuptial Agreement?

A prenuptial agreement (commonly called a “prenup”) is simply a contract agreed between a couple before they marry.

In a prenuptial agreement you decide what will happen to your financial assets and debts should you later get divorced.

Essentially it’s a “who gets what” agreement.

Without a prenup, the Court will divide the marital assets how they see fit, with the starting point often being a 50/50 split.

So, a prenup is a way of diverging from what the Court would otherwise order, should your marriage break down.

It can give a couple certainty over what will happen with their finances, should the worst happen.

A prenuptial agreement has just been signed

Top Tip:

If you’re entering a civil partnership (rather than a marriage), you can get a ‘pre-registration agreement’ which achieves the same effect as a prenuptial agreement.

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Who Should Get A Prenuptial Agreement?

There’s a common belief that prenups are only for the ‘rich and famous’.

While this may have been true in the past, prenuptial agreements are becoming more and more common.

Any couple who simply wants some certainty about what will happen with their finances if they divorce, should consider a prenup.

With that said, there are some situations where a prenup might be more useful than others. In particular, you might want to consider a prenuptial agreement if:

  • You’re remarrying and want to protect wealth or assets from a previous relationship.
  • You want to ring-fence assets to be passed on as an inheritance to children from a prior relationship.
  • There is a disparity in wealth between you and your spouse, and the wealthier partner would be disproportionately affected by a 50/50 split.
  • You own a business, property, land or investments that you want to keep under your own control after you marry.
  • You don’t currently have a large amount of wealth, but you expect to have more wealth in the future (eg. through investments, earnings, or inheritance).
  • You want to exclude any debts either of you had before the marriage, so that the other spouse does not become responsible for them.
  • You want to protect either a current or a future inheritance.
  • There is a risk of international divorce law, such as you are marrying someone from abroad.
  • You want to avoid the risk of a lengthy and costly argument about finances, should you divorce.

By signing a prenup you essentially agree to contract out of the normal rules a Court would impose during a divorce settlement.

"How To Get A Great Divorce Settlement"

If you'd like to learn more about how the Court decides your divorce settlement in the absence of a prenup, check out my separate guide:

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Are Prenuptial Agreements Legally Binding In The UK?

Unlike the United States, technically, in England and Wales prenuptial agreements are not legally binding.

However...

In 2010 there was a ground breaking court case called <bloglink>Radmacher v Granatino<bloglink>, where the Supreme Court decided that, in a modern marriage, the parties should be able to agree what they want.  

A Times newspaper article reports on the case of Radmacher and Granatino
In a landmark ruling in 2010 the Supreme Court upheld the prenuptial agreement of the heiress Katrin Radmacher.

Therefore, the Court determined that prenuptial agreements would be upheld, provided certain conditions were met.

The conditions are:

  1. The agreement was freely entered into by each party;
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  2. Each party fully understood the implications of the agreement;
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  3. And the Court decides that it would be fair to uphold the agreement

So, as long as the prenuptial agreement is prepared correctly and meets the above criteria, it’s almost as good as binding.

But, what do you need to do, practically, to meet these criteria?

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The agreement must be freely entered into by each party.

A judge will always be extremely skeptical of any agreement that looks like it was signed under pressure or was ‘forced’ upon the other party.

So, presenting your partner with a contract the night before the wedding and saying ‘sign here or the wedding’s off’ means it's very unlikely to be upheld by the court.

Both partners should seek independent legal advice.

Each party must have fully understood the implications of the agreement. This means they must have understood what they were singing, how it would affect them, and that it may mean they get less financial benefit upon divorce.

The best way to achieve this is to ensure both parties take independent legal advice, before signing the prenup. If either of you did not get legal advice, there is a good chance the court will disregard the prenuptial agreement.

Each party must fully disclose all assets and property.

Both parties must have made full disclosure of all their finances.

There can be no hiding of assets or money.

If one party can show the other side did hide or downplay their wealth, the court is very unlikely to uphold the agreement.

The prenup must be independently witnessed and signed as a Deed.

The prenup must be signed as a valid Deed. This means it can’t be just any old contract, signed by both parties.

Instead, it must also be witnessed and signed by two independent witnesses (ie. they cannot be family members). This makes it a binding Deed (rather than a mere contract).

Realistically, you’ll need to have a qualified family lawyer draw up the Deed for you.

The agreement must have been signed at least 28 days before the wedding.

This ties in with the requirement that neither party was under pressure when they signed the agreement.

Therefore you need a 'cooling-off period' of at least 28 days between signing the agreement and the date of the wedding.

The agreement must not be unfair.

If the agreement would leave one party in real financial need or hardship, while the other is comfortably provided for, then this is likely to be considered unfair and the court will not uphold it.

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“The court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement”.

<bloglink>Radmacher v Granatino [2010] UKSC 42<bloglink>

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What Can Be Included In A Prenuptial Agreement?

When it comes to a prenup, you can agree to include or exclude whatever financial assets you like.

Including:

  • Land or property (whether held in your sole name or in joint names).
  • Savings held in bank accounts (either joint or individual).
  • Investments like bonds, stocks or shares.
  • Any inheritance (whether held now, or expected in the future).
  • Pension pots.
  • Income or earnings.
  • Business interests or ownership.
  • Debts (you can agree whether or not to share any debts you may have).
  • You can agree not to make any future claims against each other, such as spousal maintenance.
  • Business interests or ownership.
  • Debts (you can agree whether or not to share any debts you may have).
  • You can agree, in the case of divorce, not to use third party funding or Sears Tooth Agreements.
  • You can include children from a prior marriage, and whether or not they have a right to any assets when you divorce.

As you can see, a couple has a very broad discretion to agree on the scope of their prenuptial agreement.

But remember, anything you leave out of the prenup will be shared as part of your <bloglink>divorce settlement<bloglink> in the normal way.

A good idea before agreeing to your prenup is to make an inventory of all the assets and debts you and your partner have (you can use the Court’s <bloglink>Form E<bloglink> to do this).

The Form E financial statement
The Form E financial statement can be used to record all your assets.

It’s also a good idea to consider not only what your situation is today, but also what it might be in the future. This way your prenup can take into account a change in circumstances, such as having children, the loss of employment, or the sale of a business etc. An experienced family lawyer will be able to help you work through these scenarios when drafting the agreement. You can also deal with any future assets that you don’t yet own, but might acquire in the future. The agreement can give a rough definition of how you plan to divide these assets in the future, should you <bloglink>get divorced.<bloglink>

Lastly, consider including a clause that provides for regular reviews of the agreement throughout the marriage. This means the court is more likely to uphold it at the end of a long marriage, as opposed to a years or even decades old agreement that has never been reviewed and has not taken account of any change in your circumstances.

What Cannot Be Included In A Prenuptial Agreement?

While the Courts are happy for you to agree whatever you like when it comes to your financial assets, there are some things they will not allow in a prenup.

They tend not to like non-financial terms, or clauses intended to restrict a person’s freedom.

For example, a prenuptial agreement will not be upheld if it:

  • Tries to allocate child custody or visitation rights.

  • Deprives a partner of their legal right to child support.
  • Dictates a person’s lifestyle or personal matters.

How Long Does A Prenuptial Agreement Last?

It’s up to you and your partner to agree how long your prenuptial agreement will last.

There are two basic methods:

  1. The prenup can last indefinitely, or;

  2. The prenup will run for a set amount of time.

The majority of couples agree their prenup will last indefinitely.

A hand holding a leather stapped watch.
It's up to you and your partner to decide how long your prenup will last for.

The alternative is to set a specific timeline for the prenup. This can be a specific date or period of time, for example, a couple may agree the prenup will only last for the first 5 years of the marriage. You can also choose for the prenup to end on a specific event occurring; for example the birth of a child to the marriage.
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Note, if you don’t include a clause saying how long the prenup will last, the default is that it will last indefinitely.

Can Your Prenuptial Agreement Be Modified?

With a prenup, the clue is in the title.

It’s a pre-nuptial agreement. Ie it’s made before marriage.
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However, if you both agree that you want to modify your agreement, you can create a post-nuptial agreement, which will replace your prenup...

Can I Get A Prenuptial Agreement After Marriage?

A postnuptial agreement can achieve everything a prenup can; the only difference being that it’s made after the marriage (ie. after your <bloglink>decree absolute has been granted).<bloglink>

Postnups can be used:

  1. To modify an existing prenup (the postnup will explicitly state that it revokes and replaces the previous agreement), or;
  1. If you want to enter into an agreement at any time after you marry (for example, if your finances change significantly after marriage, you may want the protection of an agreement).  

Just like a prenup, a postnup technically is not legally binding in the UK. However, if it’s drafted correctly (with legal advice taken etc), it is very likely to be upheld by the Court.

Postnups vs prenups

In fact, a properly drafted postnup can often be seen as more binding than a prenup, as the Court is less likely to find there was any coercion or pressure after you’re already married.

How Long Does It Take To Get A Prenuptial Agreement?

The length of time it takes to agree and draft your prenup largely depends on the complexity of your finances.

A straightforward agreement should only take a few weeks to arrange.

However, if you have lots of complex finances to consider (such as stocks or investment portfolios, business interest, or inheritances), then it can take a lot longer.

For very complex or high-value assets, <bloglink>independent valuations<bloglink> may also be required, which will add to the timeline.

Whatever your financial situation, a good rule of thumb is to try to begin the process at least 6 months before your wedding date.

How Much Does A Prenuptial Agreement Cost?

Just like the timeline, the major factor affecting the cost of a prenup is the complexity of your finances.

The more complex, the more costly it will be.

A simple agreement with straightforward finances will cost in the region of £2000 to £3000 plus VAT.

Costs can reach £10,000 or more if there are complex assets to be agreed upon.

Other factors affecting the cost include the location and expertise of the law firm, (a high-end law firm in central London will obviously charge more than a local firm in a small town); whether there are any international factors to the agreement; and whether any assets need to be independently assessed and valued.

In general, costs will start to rise significantly if your lawyer charges an hourly rate rather than a fixed fee. As a very rough rule of thumb, some lawyers tend to start charging an hourly rate when the total value of the assets is over £1 million.

A lawyer will bill in units of 6 minutes
When a lawyer charges at an hourly rate, they bill you in units of 6 minutes at a time.

Remember, if you want the best chance for your prenup to be upheld by the Court, both parties should have taken independent legal advice on the agreement. Therefore, you should also factor in the costs of a second lawyer to advise the other partner. This will usually be charged at the lawyer’s hourly billing rate.

"An In-Depth Guide To The Cost Of Divorce"

You can learn more how much a divorce lawyer costs in my separate post:

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Can I Get A Prenuptial Agreement If I’m Not Married?

No,

Nuptial means ‘married’ in Latin.

So prenup and postnups are only for those who are married/ about to get married.

However, if you’re in a relationship and would still like the protection of a written agreement but don’t plan on getting married, you can get something called a ‘Cohabitation Agreement’.

This can achieve everything a prenup can, but for unmarried couples.

Can Signing A Prenuptial Agreement Affect My Will?

A prenuptial agreement certainly can affect the implementation of a will.

The interaction between a will and a prenuptial agreement can become very complex, and could lead to litigation later down the line.

Therefore, if you do have a pre-existing will, it’s very important to show this to your lawyer at the point the prenup is drafted, so that it can be taken into account, and your will can be amended or updated if required.

If you don’t have a will, it’s a good idea to get one at the same time as your prenup, so that it can reflect the terms of the agreement.

Can I Include My Pension Within A Prenuptial Agreement?

Yes,

Like any other financial asset, a <bloglink>pension<bloglink> can be included and protected by a prenup.

In fact, this is becoming an increasingly popular option, as older people who are remarrying later in life want to ensure that their <bloglink>pension is protected<bloglink>, and will not be divided should their second marriage break down. You can use a prenup to do this.

Can A Prenuptial Agreement Protect My Future Wealth?

Yes,
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A prenup can be used to protect assets that you already own, and can include a clause to protect any other assets or wealth you might obtain in the future.

A prenuptial agreement can protect both current and future wealth

Can I Get A Prenuptial Agreement Without Using A Solicitor?

Realistically, no.

Some people do try to draft their own prenup, often using a free online template.

However, it’s very unlikely it will be drafted correctly. The agreement requires specific legal terminology and must be independently witnessed and signed as a <bloglink>Deed<bloglink> (not a mere contract).

And remember, a Court is very unlikely to uphold a prenup if both of you didn’t get independent legal advice at the time it was agreed.  

So, by trying to save money, you’re likely to end up with a prenuptial agreement that isn’t worth the paper it’s written on.

In short, this is a bad idea- don’t do it.

Can I Use Mediation To Reach A Prenuptial Agreement?

Mediation can be a great way to agree on a prenuptial agreement, or a <bloglink>consent order.<bloglink>

<bloglink>A mediator can help you agree<bloglink> on what should and should not be included in the prenup, and should help you come to an agreement that is fair. This improves the chances of the agreement being upheld by the Court later down the line.

Remember, <bloglink>a mediator will not make the decisions for you.<bloglink> They can only help you come to an agreement. And once you’ve decided the terms, you’ll still need a lawyer to draw up the agreement for you.

Can I Challenge A Prenuptial Agreement?

If you’ve signed a prenup, you might think that it’s impossible for you to dispute it.

However, that’s not always the case.

There are two scenarios where a Court may decide not to uphold a prenuptial agreement:

  1. The prenuptial agreement was improper from the outset, or;
  1. Your circumstances have changed and it would no longer be fair to uphold the agreement.
A ring of chains breaks in the middle
Prenuptial Agreements are not always binding. If there are problems with the agreement, the Court will not uphold it.

The Prenuptial Agreement Was Improper From The Outset

If any of the factors below apply, it’s likely the Court will disregard the prenup, as it was improperly made from the outset:

  • If you can prove there was any coercion or undue pressure put on you to sign the prenup, or if the prenup was signed less than 28 days before the wedding.
  • If either party didn’t take independent legal advice before the prenup was signed, or if either party was advised by their solicitor not to sign the prenup.
  • If the prenup was not properly drafted, or was not witnessed as a Deed. This may be the case if a non-specialist lawyer was used, or if the wording of the agreement suggests any kind of bias.
  • If the terms of the prenup were simply dictated by one party, without any real negotiation.
  • If you can show you did not fully understand the implications of the agreement. For example, due to mental health issues or stress you were under at the time of signing.
  • If either party did not fully disclose all their financial assets, liabilities and debts.
  • If the prenup attempts to control or demean a party, or imposes nonsensical requirements.
  • If the signatures were forged, or unilateral changes were made to the agreement after signing.

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Your Circumstances Have Changed And It Would No Longer Be Fair To Uphold The Agreement

The Court may disregard the agreement if your circumstances have now changed and it would no longer be fair to uphold the prenup. For example:

  • The prenup does not take account of future changes, such as providing financially for any children you may have during the marriage.
  • If there has been a substantial change in circumstances, such as one party becoming severely disabled.
  • If one party subsequently made a decision for the good of the marriage (such as giving up a career to care for the family), and the prenup did not foresee or take account of that change, it may be considered unfair.
  • If the penup provided for regular reviews, and these reviews were not completed.

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If the Court does find the prenup is deficient in some way, they can either disregard it completely or just exclude some specific terms.

Funding Your Divorce

If you are going through a divorce, or want to challenge a prenup, you’ll need a good family solicitor.

However, many people struggle to pay the costs of a lawyer upfront.

But there are now a new range of specialist lenders who provide funding to help pay for the costs of your divorce.

This specialist funding can help you pay for:

  • Mediations sessions
  • Solicitor led negotiations
  • Going to divorce court
  • And more...

Specialist funding is rapidly becoming one of the most convenient and cost-effective ways to fund your divorce.

Check out my divorce funding page to learn more:

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