If you’re going to tie the knot soon or have been planning to get married to the love of your life any time in the future, it is worth considering creating a prenuptial agreement (prenup) to make things easier if your marriage does not go as planned.
A prenup is essentially a legal document that is mutually made between the two spouses outlining how they would prefer to split the marital assets and other important matters in case one spouse files for divorce.
While this will sound mildly offensive to your spouse because, well, what couple would want to think they would get divorced even before getting married – but rest assured, in the long run, a prenup could come in significantly handy when or if your marriage goes south.
In that event, it is very important to stay abreast of what cannot be included in a prenup in the UK and the things that can be included. Let’s see what those things are.
What is a Prenup Agreement?
A prenuptial or prenup agreement is a legal document or contract between a soon-to-be husband and a wife (or spouses of the same gender). The document is produced and signed by both parties.
The primary objective of a prenuptial contract is to outline and set some ground rules in stone if one spouse files for separation or divorce in the future (after getting married). The document establishes and implements each individual’s obligations and financial arrangements should their marriage end.
In light of this, here are some vital aspects that are included in a prenup agreement:
- Equitable division of marital assets (which spouse would get what asset or money in the event of divorce).
- The amount of spousal support to be paid by the main breadwinner (this can be the husband or the wife).
- Who will be responsible for paying the total debt accumulated (if any) – how it is going to be distributed?
- The security of assets that each spouse earned or acquired before they got married (premarital assets).
- Clearly establishing each spouse’s separate property for an amicable separation in the event of divorce.
However, it is also vital to keep in mind that the main purpose of a prenup is to outline the couple’s debt responsibility and financial support – you cannot include child support matters or decide an amount that you will pay after divorce. This is going to be decided by the court.
Similarly, it is also important to note that a prenuptial contract cannot be legally enforceable in England and Wales. But, at the same time, the law commands that contracts be legally produced and signed by both individuals.
Legal Framework for Prenups in the UK
While a prenup in the UK cannot be legally enforced in the United Kingdom, you can take some consolation in the fact that the courts do view the contract as valid evidence of mutual agreement between spouses before getting married.
The court can and may use the contract in decisive cases, especially when it comes to uncontested divorces.
It will be an excellent idea to have a well-established and legally crafted prenuptial contract in place when there is more than marginal difference in financial standing between two spouses.
In this case, a marriage agreement will serve as a decisive tool to remedy a situation where there is a loud difference in opinion amongst spouses during a divorce case.
In addition, as to the legal framework of a prenup, there are several important factors that the court will take into account to deem it a valid contract. Those factors include:
- How the prenuptial agreement UK was created and entered into
- How long before the couple got married was the contract created (the timeline)
- Whether both individuals willingly and voluntarily created the prenup with the consultation of their respective family solicitors.
Moreover, for the contract to be legally binding or valid in the eyes of the court, it will want to know if the agreement was created with mutual understanding and consent and that no fraudulent, devious, or misleading strategies were used to create the contract.
If the prenup was made by exerting undue pressure on one individual, it will not be deemed valid. Furthermore, there are also important legal requirements that must be taken into account when creating a legally binding contract. These requirements include:
- The contract must be signed by both individuals (the signatures must be valid).
- It must be created in contemplation of both individuals getting married.
- The contract must not include fraudulent, illogical, unreasonable, or tyrannical elements.
What Can Be Included in a Prenup?
Financial Arrangements
Among the things you can include in your prenup UK are your financial arrangements. A broad category, your financial matter will include factors such as the division of your marital assets, which can include jointly owned properties, marital residence, joint bank accounts, pension accounts, and more.
In addition, the contract will also highlight each individual’s debts and liability post-marriage – especially if both spouses run a business together or have taken out loans or mortgages. The arrangement will mention how each spouse is going to pay for such liabilities.
Moreover, the prenup will also comprise details on the spousal support amount that the non-custodial spouse will have to pay every month.
Personal Property and Assets
Your pre marriage agreement in the UK will also have to consist of individual assets owned pre and post-marriage. This is to ensure that the distribution of assets in the event of divorce is equitable and fair.
This will also include any inheritances and gifts received by both individuals before and after getting married – such as inheriting a large sum of money, property, vehicle, luxury items, paintings, etc.
Provisions for Children
If you’re marrying for a second time and also have children from your previous marriage, you will need to define a financial support plan for those children in your marriage agreement to safeguard their future.
This is especially important should you or your new spouse file for divorce in the future. You will need to lay out a comprehensive plan that outlines the distribution of assets and legal provisions or assets entitled to children from your first marriage.
What Cannot Be Included in a Prenup?
Custody and Access Rights
Keep in mind that a prenup UK cannot include child support and/or custody arrangements. That is to be determined by the court. The main objective of the contract is to safeguard the financial interests of both individuals amicably. Similarly, you nor your partner have the right to decide who will get primary custody of your child and/or set a visitation schedule.
Provisions That Contradict Public Policy
You cannot add illogical or contradictory statements or requests that are against public policy and/or can lead to divorce in the future. For example, you cannot assign household or professional duties or goals to your spouse. The prenup cannot have the desired expectations listed. Similarly, unfair or unreasonable terms will automatically invalidate a prenup.
Drafting a Prenuptial Agreement
On the surface, creating a prenup UK may seem straightforward once you know what to and what not to include in the contract. However, it is also important to know that these contracts are not strictly enforceable in the UK.
But they are relevant documents that can help decide your case in the event of your divorce. So, to make a legally valid and admissible prenup, you need to consult with your family solicitor as to how to appropriately word your prenup and ensure it has all the legal elements.
For example, one of the most essential factors to consider is ensuring that the prenup is drafted with fairness and upon the voluntary consent of your partner.
This is where Lawyersorted.com comes into play. We have a vast and powerful network of some of the most qualified family solicitors and divorce lawyers in the UK.
Conclusion
There you have it, a comprehensive analysis of what can and cannot be included in a prenup UK and why it is so important to create a legally binding marriage contract with the help of professional and experienced legal professionals.
Frequently Asked Questions
Do prenups work in the UK?
While prenups are considered as important and decisive documents by the courts when it comes to a divorce proceeding, they are, however, not legally enforceable unless the court decides to make them enforcable.
Can you write your own prenup in the UK?
You can create your own prenup. However, it is very important to have the voluntary consent of your partner. Moreover, the contract must only contain elements that make a prenup valid and must be signed by both parties.
How do you get a prenup?
Getting a prenup is rather straightforward in the UK, you can schedule an appointment with a divorce solicitor together with your partner and officially consent to creating a prenup.
What financial arrangements can be included in a prenup?
Your prenup should contain your financial arrangements such as your jointly owned assets or bank accounts, pre-marital properties or assets, any inheritance or gifts received pre or post-marriage, business assets, and more.
