Prenuptial agreements
The common feature of those seeking advice on prenuptials is a search for certainty in an uncertain world
Our clients are typically either young couples setting out or those in later life, who seek to reduce the possibility of conflict in the event of their marriage breaking down or protect assets for their children.
The run up to your wedding can be a stressful time, and this does not need to add to your list of worries. We will listen to you, discuss your expectations and concerns, and advise you on the advantages and disadvantages of entering into a prenuptial agreement based on your individual set of circumstances. We can then advise on the best approach to drafting and negotiating the terms of the agreement.
Preparing a prenuptial agreement is not just about the law. These agreements often involve wider family members and they necessitate discussions about inheritance and family trusts.
Negotiations need to be delicately and diplomatically handled. We will guide you through the process in a pragmatic yet emotionally sensitive way. Our Private Client team can provide advice on the tax and inheritance implications of your prenuptial agreement at the same time and can draw up a Will to reflect the terms of the agreement.
Those planning a prenuptial agreement are often of a different nationality and/or live abroad. If that is the case, we will draw on our contacts in other countries to ensure clients obtain good advice from foreign lawyers.
Depending on the circumstances, we will be able to do this well in advance of your wedding date so that the prenuptial can be signed and you can then get on with the more enjoyable aspects of your wedding planning.
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Frequently Asked Questions
Are prenuptials legally binding?
Until recently, prenuptials were not enforceable in England and Wales. This was in contrast to the position in other European jurisdictions.
Since the 2010 case of Radmacher and Gramatino, the case law now says that the Court should give effect to a nuptial agreement (i.e. a prenuptial or postnuptial) 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.
When deciding whether it is fair to hold individuals to a prenuptial, a number of factors have been identified as relevant. For example, both the husband and the wife must enter in to the agreement of their own free will. Duress or undue pressure could reduce the weight that is given to the agreement and could even negate it completely. The Court will look at the couples’ circumstances at the time the agreement was entered into (age, maturity and emotional state) in considering whether each of them understood the implications of the agreement and whether they intended it to be effective. Whether the parties obtained independent legal advice and the level of financial disclosure will also be relevant.
Any children of the marriage remain an overriding consideration and the terms of the agreement must still result in a ‘fair’ outcome. The closer the effect of an agreement to an outcome that the Court would find to be fair, the more likely it is to be given decisive weight.
In summary, prenuptials are increasingly being upheld by the Courts and it is essential that you sign up expecting to be bound by it. You will need to understand the rights you are giving up by entering into such an agreement.
Is it worth me getting a prenuptial agreement?
If you have assets or income to protect, or perhaps you are marrying for a second time, it may well be worthwhile entering into a prenuptial. We will tailor the agreement to your specific objectives, and will give you realistic advice on the law so that you are protected in the future.
What if we are getting married abroad?
If you have connections with England, or you are planning on living here during your marriage, it may be in your interests to have an English prenuptial. We will work with lawyers in other countries, if relevant to your circumstances, to make sure you have advice where you need it.
What is the difference between a prenuptial and a postnuptial?
A prenuptial is an agreement entered into before marriage; a postnuptial is entered into after marriage.
When should I start the prenuptial process?
The sooner you start discussions the better. It is worth starting the process at least 6-12 months before your wedding so that it can be done without time pressures. Ideally, you would sign the agreement at least 2 months before your wedding.
How does the negotiation process work?
It is different for every client: some negotiate directly with their partner, some want everything negotiated through lawyers. Some prenuptials are negotiated within a Collaborative Law process which involves lawyers and clients attending meetings to discuss and agree the content of the agreement.
How much will a prenuptial cost?
Costs for each party are generally between £5,000 to £10,000 (plus VAT and expenses) unless the agreement has a particular complexity.
What level of disclosure will I have to provide?
You will each need to give material disclosure of your financial circumstances. We will advise you, taking into account your particular financial position, how much disclosure is necessary.