Prenuptial agreements or, as they’re more commonly known, prenups have been around for years but were historically the preserve of celebrities and the very rich.  This may be why ‘normal’ people are still not comfortable with prenups.

However, over the last few years solicitors have reported a big increase in demand for prenups.  In fact, according to several recent poles one in five weddings in the UK now involves some form of agreement.

Moreover, research undertaken by wealth managers Hargreaves Lansdown found that one in ten people said that, retrospectively, they wished they had put a prenup in place before getting married.

Why aren’t people comfortable with prenups?

According to Co-Op Legal Services half of the married adults who don’t have a prenup say it’s because they trust their partners while more than 25% don’t believe they will ever get divorced.  Both these statistics underline why a discussion about prenuptial agreements is rare.

However, there are other reasons why people don’t talk about prenups.

Discussing a prenup can feel like a conversation about what happens if things don’t work out.  As you enter a marriage, this is a discussion you either don’t want to have or don’t think it’s necessary to have.  You want to enjoy the romance, the ‘here and now’.   

There could also be a feeling that the party requesting the prenup harbours concerns their future spouse is in some small part marrying them for their money.  There could, therefore, be a worry that bringing up the subject could be insulting to your partner. 

On the flipside, prenups have historically had a negative reputation for keeping the financial power in a marriage with one of the parties.  The other may not want to accept this believing their marriage is an equal partnership.

If you do want to discuss prenups, the conversation should cover the pros and cons of signing a prenuptial agreement.  This will help you come to an informed decision as to whether a prenup is right for you.

The benefits of a prenup are that the agreement will:

• Ensure you both begin your marriage with a clear understanding of your financial situation.
• Protect your assets, including those you want to safeguard for your children.
• Protect you against personal liability for your partner’s debts.
• Safeguard your business and any future profits your business generates.

And of course, having a prenup should also save you time and expense if you do decide to divorce.  You will have already set out your finances and assets and how you have agreed they would be split if you separate.

However, aside from the fact that the process will not be the most romantic and could cause a little tension, the drawbacks of a prenup are:

• They are not legally binding so may not be taken into consideration in divorce proceedings.
• There will be a fee for drawing up the agreement and the process can take time if there is a lot of detail involved.
• You should review your agreement regularly.  Again, this will involve time and expense.
• There is a risk of upset as you both begin to table exactly what you’d like included in the prenup.

Are prenup agreements legally binding in the UK?

Arguably the biggest drawback with a prenup is they are not legally binding in England and Wales.  However, they are increasingly being considered as credible and even decisive by the Courts. 

In many cases the existence of a prenup will influence the outcome of an application for Financial Remedy if the Court can determine:

• How the agreement was entered into and, more specifically, that both parties entered the agreement freely and without duress.
• How close the agreement came into being before the marriage.
• Whether the parties took independent legal advice before signing the agreement.

These points are outlined in more detail in the Law Commission’s Consultation Paper 343: Matrimonial Property, Needs and Agreements.  This paper carefully outlines what makes a prenuptial agreement a ‘qualifying nuptial agreement’. 

While there are no guarantees a qualifying agreement will affect the outcome of a case, there is growing legal precedent that the Courts are respecting the terms of a qualifying nuptial agreement.  This means that even though it may be an easy discussion, people should perhaps be more comfortable talking about prenups.

If you would like to discuss how to progress a pre- or post-nuptial agreement or how best to leverage an existing agreement in a current divorce proceedings with one of our experienced family barristers, please contact us today.