It is not uncommon to feel upset that your partner wishes to regularise any future breakup, but that doesn’t mean they are predicting its downfall. The vast majority of prenuptial agreements are written, negotiated, and signed in an amicable manner because both parties are committed to each other and believe that the agreement will never be needed.
One of the biggest misconceptions surrounding prenuptial agreements is that they are unromantic and indicate a lack of faith in the marriage. This is usually a long way from the truth, but because prenups are only really discussed when they become part of a divorce, the many thousands of couples happily living married lives with prenuptial agreements in place are rarely noticed. This article looks at the advantages of a prenup and what you should consider if you are the financially weaker party.
Putting a positive spin on entering a prenup
You could try to use the process to have an open conversation with your partner about finances and discuss significant life decisions. Having a prenup may even protect you in future from your partner’s debts. The current legal position is that prenuptial agreements do not remove the courts power to make financial orders surrounding the division of matrimonial assets on divorce or dissolution.
A prenup can be a sensible insurance option, and although not considered as being the most romantic of conversations whilst being measured for the wedding dress and suits, the certainty of outcome to be achieved can help to reduce conflict and confusion that often arises when a relationship ends.
The court’s position surrounding prenuptial agreements
The existence of a prenuptial agreement will be considered as a “relevant circumstance” of the case, the importance of which will be weighed by the court.
Since the 2010 case of Radmacher v Granatino, the Supreme Court held that, in the future, courts should give effect to a prenup that was “freely entered into with a full appreciation of its implications, unless it would be unfair to hold the parties to the agreement”. The implication of this judgment means that courts are now more likely to uphold, or attach significant weight, to a prenup, provided that test is met. As a result, many prenuptial agreements are being upheld by the courts, despite judges having the power to depart from them.
Do I have to agree to a prenup if I feel it is unfair?
Ultimately, if you feel a prenup is unfair, then no one can force or otherwise coerce you into agreeing to its terms. Otherwise, it is likely to be considered invalid by the court. If a court deems a prenup unfair, if it doesn’t cater for the needs of any children, or if circumstances have changed since it was written, then it may not be considered legally binding.
If you are unsure of the terms of a prenuptial agreement, then you should speak to a solicitor who can advise you as to its implications, for you personally and also legally.
What are the advantages of having a prenup if you are the financially weaker party?
Prenuptial agreements are becoming increasingly common. This trend is driven by factors such as later marriages, the increase in second or subsequent marriages, and a greater emphasis on protecting pre-existing assets, businesses, and inheritance. But there are also advantages for the financially weaker party. Here are our selection below:
- Allows you to communicate your financial expectations and plans, setting out your own ideas about what your future life together looks like: What are the expectations for housing and income needs? Will each party remain employed, or will one party become primary carer for any children? Where will the children be educated?
- Provides transparency on finances, assets, liabilities, and income. Enables you to protect any existing or anticipated monetary gifts
- Can ensure your assets are not used to pay down any debts your partner may have
- Offers insight into just how much money your partner has before you marry
- Reduces the potential for conflict if the worst happens by agreeing who owns what before marrying
- Think of the prenup as a type of insurance policy which is there to help should the worst happen. Prenuptial agreements are often overlooked and underestimated for ensuring financial security. One benefit which is often not talked about is how they can potentially save you money in the event of a breakup , making expensive divorce litigation much less likely.
- If you wanted to protect a business, or another asset, such as an inheritance received before the marriage, a prenup could be used to achieve this aim.
Can anything invalidate a prenup during the marriage?
There are several reasons a prenup could be declared invalid by a court. The following is a non-exhaustive list:
- If one party can prove they were coerced into signing the agreement, they were mentally ill when they signed it, or they didn’t understand what they were signing or the implications
- If the prenup contains nonsensical requirements that could be seen to demean or control a spouse
- If the prenup was signed without obtaining proper legal advice or representation throughout the process
- If one or both parties failed to fully disclose their assets and/or debts
- If the paperwork was poorly drafted/written
- Children of the marriage are treated unfairly
- The prenup must have been drawn up at least 28 days before the marriage, but talks of ringfencing certain assets should, ideally, begin some months prior. If it can be proved to be anything shorter than 28 days, the prenup may be deemed invalid
- Faked or forged signatures or changes to the text after signing
It is also possible, and in many cases, advisable, to amend a prenup during the marriage. This is useful where financial circumstances change, such as the main wage earner altering, or children being born. If the prenup has remained the same for the duration of the marriage, there may be some scope to contest its provisions, or lack of them, during the divorce.
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