Prenuptial Agreements

What you will learn from this article:

 

1. Why choose our Prenuptial Agreement?

2. What is a prenuptial agreement?

3. What does a prenuptial agreement do?

4. How does a prenuptial agreement work?

5 . How do I get a prenuptial agreement?

6.Do I need a Prenuptial agreement?

7.Cost of prenuptial agreement / Fixed fee prenuptial agreement.

8.Is a prenuptial agreement legally binding? The Radmacher Criteria.

9.Postnuptial agreements – v – prenuptial agreements.

10.Contesting a Prenuptial Agreement – Is it possible to contest a prenup?

11.Do I need a lawyer for a prenuptial agreement?

12.Does a will supersede a prenuptial agreement?

13.Can you do a prenuptial agreement yourself?

14.Prenuptial agreement after marriage.

15.Prenuptial agreement infidelity clause.

16.Are prenuptial agreements enforceable in the UK?

17.Antenuptial Agreements vs Prenuptial Agreements.

18.Prenuptial agreement pros and cons.

 

 

1. Why choose our Prenuptial Agreement?

LFCS Legal have a wealth of experience with Prenuptial Agreements and Family Law. We aim to provide the best prenuptial agreement legal advice possible to all of our clients.

Our leading prenuptial agreement – Joanne Feldman, can help you protect your property and finances, and assist you with a carefully created prenuptial agreement.

During your Free Initial Consultation, we will take the needs of yourself and your partner into consideration to draft a Prenuptial Agreement that best suits the uniqueness of your relationship.

 

“I cannot thank Joanne enough for the support and professional knowledge throughout my entire divorce process.I came to you through a recommendation and have already recommended your services to others.I feel safe knowing my future is protected from my ex husband and that has to be the most valuable service of all.Thanks again.” – A.

 

2.What is a prenuptial agreement?

A Prenuptial Agreement (often referred to as a Prenup) is a contract between 2 people before they get married or enter into a civil partnership. More and more couples are incorporating them them into their wedding plans to boost their financial security before walking down the aisle.

Pre nups and post nups enables couples to “choose their own rules” about their finances during and at the end of their relationship.

Moreover, it sets out any property, debts, income or other assets that each party is bringing into their marriage and states in writing what the parties agree should happen until and when their marriage or civil union eventually ends by death or divorce.

 

“Nobody wants to start a marriage or relationship thinking about divorce or separation but everyone knows there is always a possibility it might not work out. We help by enabling couples to be completely open and honest about their financial fears. The process opens communication and strengthens the relationship.”

 

3.What does a prenuptial agreement do?

A Prenup can specifically identify who will be responsible for the property and finances of each partner during the marriage in addition to “who will get what” following a divorce.

It can be simple or complex but, generally speaking, it is designed to help couples like you protect at the very least assets owned before the marriage, expected inheritance, trust funds and assets they may want to leave children from a previous marriage.

 

4.How does a prenuptial agreement work?

In basic terms, each party provides a list of all their assets, including pensions and earnings, and the couple sit down and go through what they would like to happen to those assets if the relationship for some reason doesn’t work out.

Some couples are very happy to enter into a contract that simply concludes that there should be an equal split. Many couples also agree to ring-fence some or all of the assets that they bring into the relationship or expect to acquire.

 

5.How do I get a prenuptial agreement?
Our process is very simple:

1. You telephone us or complete our free online enquiry and we discuss the likely assets involved and your requirements.
2. Once you approve our fee and instruct us, we send you a questionnaire to complete.
3. Once we have all the information from you, we send you a draft prenup to approve.
4. Once you feel comfortable and approve the draft, we send it to your partner’s Solicitor for approval.
5. Once both parties and their respective lawyers have approved the document, it will be signed and dated and retained safely for future reference at any time in the future.

 

6.Do I need a Prenuptial agreement?
A prenup, like life and health insurance, provides you with an invaluable resource when life doesn’t go according to plan. Bearing in mind that almost 50% of marriages result in divorce, prenups are a sensible and realistic way of starting a marriage.Couples who enter into prenups have a shared spirit of openness and honesty and gain a sense of security from the frank discussions and transparent process.There is no doubt that some people will regard a prenup to be rather unromantic and pessimistic and indeed it might be an awkward topic for some couples.Although Prenups hold tremendous weight when they are prepared correctly, no one can give you a 100% guarantee that they will be watertight in years or decades ahead. However, there is no doubt that the legal climate is shifting in favour of upholding those Agreements that have been carefully drafted by (and advice has been followed from) specialist lawyers like ourselves.

 

7.Cost of prenuptial agreement / Fixed fee prenuptial agreement:
Our costs start at £1,500 plus VAT and rise incrementally up to approximately £5,000 plus VAT depending on the complexity of the financial circumstances of each party.If your total assets are less than £1,000,000, we will be able to offer you a fixed fee arrangement following an initial free consultation.More substantial assets will require more time and generally attract larger fees accordingly.The legal fees for a Prenup are without a doubt much less than the cost of an average wedding and a fraction of what you could stand to lose if you don’t protect your assets or you need a lawyer to unravel your divorce.

 

8.Is a prenuptial agreement legally binding? The Radmacher Criteria
Since the case of Radmacher – v – Granatino in 2010, Solicitors have been given a firm set of rules to follow when drafting a prenup. Following this case, it is much more likely that a court will uphold a prenuptial agreement where there is certainty as follows:Each of the couples has made complete disclosure to the other as to what they own and what their assets are and each party fully understands the financial resources, income and liabilities involved.
Neither of them has been placed under undue pressure (duress) to enter into the prenup. This means that the agreement has to be prepared in good time and ideally signed at least 28 days before the marriage or civil partnership and that each person has had time to fully consider it. As you can imagine it will not go down well with a court if a prenup was presented to a partner on the eve of the wedding and it is certainly not an option to ask your partner to “suggest there will be no wedding without a prenup being signed” …just before the guests are all arriving!
Each of the couples has separate and independent legal advice.
If at the point the relationship breaks down and the prenup is being relied upon, the consequences of holding the couple to the agreement must not put either one of them or a child, in a position of financial hardship. In simple terms, the prenup must be considered fair and reasonable.

 

9.Postnuptial agreements – v – prenuptial agreements:
In the landmark case of McLeod – v – McLeod (2008), the court ruled that a post-nuptial agreement, signed after the marriage has taken place, could be upheld in the same way as a prenuptial agreement, provided it was prepared so that it met the same criteria as covered above.Although assets acquired after a marriage (aka marital assets) can be covered in a prenuptial agreement, a post-nuptial agreement can include specific marital property that has been acquired since the parties got married.Post-nuptial agreements are also useful when parties become aware of imminent inheritance or are considering entering into a business with a third party.

 

10.Contesting a Prenuptial Agreement – Is it possible to contest a prenup?
The main reason to contest a prenuptial agreement is that it can no longer be considered fair or reasonable by one of the parties.A prenup can be amended during the marriage to cater for changes in circumstances as long as the agreement is signed by both parties and witnessed in the same way as the initial prenuptial agreement.To contest a prenup you would have to make a court application (at the time of your divorce) and present to the court your reasons for why you believe the prenup should not be upheld.There would have to be a good reason for a court to completely disregard a prenup and the English courts can veto all or parts, especially if they fail to meet the needs of the parties or children.

 

11.Do I need a lawyer for a prenuptial agreement?

 

12.Does a will supersede a prenuptial agreement?
If your prenup was entered into freely and meets all qualifying criteria, then it will be upheld in court following your death and will not be overridden by your Will.

13.Can you do a prenuptial agreement yourself?
You can of course try and create your Prenup but current case law is such that it is extremely unlikely to hold much weight by a court.

The Law Commission in 2014 included a draft Prenuptial Agreements Bill and although the debate is yet to be finalised, it has been suggested that Prenups be made legally binding where each party has received independent legal advice.

 

14.Prenuptial agreement after marriage
When a couple has already married, but still wants some protection, they can have a postnuptial agreement instead. This has the same legal treatment as a prenuptial agreement and the only difference is the timing of it.

We always give a post-nuptial agreement special attention to make sure it complies with all of the stipulations recommended in up-to-date case law to ensure it is as watertight as possible.

Postnups are particularly relied upon when unforeseen circumstances arise such as a lottery win, unexpected inheritance or unforeseen disability.

 

15.Prenuptial agreement infidelity clause
An infidelity clause is often included in a prenuptial agreement in the USA and it can of course be included in your bespoke prenuptial agreement.

These clauses usually specify that should either partner engage in adultery, they forfeit their claim to certain assets or are otherwise penalised in the case of a divorce and the eventual separation of belongings.

Indeed, it makes it clear that both spouses take marital faithfulness seriously. However, the new divorce laws since April 2022 are based on a no-fault principle and infidelity clauses in prenups have yet to be tried and tested in a UK court.

In conclusion, an infidelity clause forces parties to discuss the issue but so far there are no examples of them being enforceable.

 

16.Are prenuptial agreements enforceable in the UK?
As stated above, prenups are not legally binding (by statute law) but case law since 2010 is such that they hold significant weight if the Radmacher criteria stated above are followed.

 

17.Antenuptial Agreements vs Prenuptial Agreements
Ante-nuptial agreements and prenuptial agreements mean the same thing and there is no difference between them.

There has been a notable increase in demand for prenuptial agreements since the landmark case of Radmacher was reported 12 years ago.

There is no doubt that it is so much easier for couples to negotiate a financial agreement at the beginning of their marriage as opposed to when their relationship has broken down.

 

18.Prenuptial agreement pros and cons:
A prenup, like life and health insurance, provides you with an invaluable resource when life doesn’t go according to plan. Bearing in mind that almost 50% of marriages result in divorce, prenups are a sensible and realistic way of starting a marriage. Couples who enter into them have a shared spirit of openness and honesty and gain a sense of security from the frank discussions and transparent process.

There is no doubt that some people will regard a prenup to be rather unromantic and pessimistic and indeed it might be an awkward topic for some couples. Although Pre-Nups hold tremendous weight when they are prepared correctly, no one can give you a 100% guarantee that they will be watertight in years or decades ahead. However, there is no doubt that the legal climate is shifting in favour of upholding those Agreements that have been carefully drafted by ( and advice has been followed from ) specialist lawyers like ourselves.

 

Pre-nuptial Agreement Case study (Joanne Feldman)

 

My first ever prenup involved a gentleman who at the age of 75 was looking forward to marrying a young lady aged 35 who he had met on holiday abroad.

His children were dubious and anxious about his forthcoming marriage and were naturally very concerned that his new wife would inherit the former matrimonial home and other sentimental items that had accumulated during the previous marriage of their parents.

Once he was able to assure his children and extended family that a prenuptial agreement had been drawn up and signed, his relationship with them improved significantly and he was delighted that they became much more accepting of his new bride.

My client also admitted to me that he felt more secure knowing that his much younger bride was still keen to marry him despite a significant amount of assets being ring-fenced.

Our clients

Many of my prenup clients are marrying later in life or for a second time and do not want to risk losing part of their pension in a divorce settlement.

I have acted for some clients who want to protect future earnings and I have particularly seen a notable demand for prenups from young couples who want to protect their initial contribution to the first jointly owned property and in particular where a deposit has been gifted by the parents of one of the parties.

Prenups are not just reserved for the rich and famous. Anyone who wants to protect any property and assets they bring into a marriage will find them invaluable.