Questions to Ask Before Signing a Prenup

07 July 2015

It’s probably not the most romantic conversation you’re ever going to have with the love of your life, but deciding on the finer details of a prenuptial agreement could save a lot of arguments further down the line.

Pre-nuptial and Post-Nuptial Agreements are commonplace these days. And whereas asking for a prenup for marriage purposes 10 years ago would probably have resulted in the response “Why? Don’t you trust me?” today you’re far more likely to be met with “I was just about to ask you the same thing!”.

Questions to ask yourself, your partner and your prenup Solicitor

  1. __Do you want to disclose all of your assets to your partner?
    __You are not legally required to disclose all of your assets when drawing up a prenup for marriage. However, it may cause some serious trust issues further down the line if your partner finds out later that you have kept some assets ‘hidden’ from them. They may also be able to put in a claim on those assets on the perfectly reasonable proviso that they are not included in the prenup and are therefore ‘fair game’ as a contestable asset in a divorce settlement. So it is probably in your best interests to be as honest as you can from the outset, and disclose your assets in full.
  2. __Are you getting married, arranging a civil partnership or just co-habiting?
    __Prenup agreements are applicable for anyone getting married or entering into a civil partnership, including same-sex couples. However, if you are co-habiting without entering into a formal relationship then a prenup is not applicable. You should to talk to a legal adviser who will be able to help you draw up a cohabitation agreement that works for your individual circumstances.
  3. What changes need to be made if you have children?
    You can put clauses into your prenup that specify how assets are to be divided in the event of you having children with your partner. Alternatively, you can revise your document once your children arrive and draw up a new agreement that includes considerations for the children.
  4. Does your prenup cover your business assets?
    This can be a tricky one. Often, prenups are specifically drawn up to protect the business interest of one or both partners, especially if it’s a family business on one side. However, business assets are more open to fluctuations than almost anything else, and you will need to be very careful how you word any clauses that cover business assets. At the Co-op Legal Services, we always advise our clients that they should talk to a legal expert before including business assets in any prenup agreement.
  5. Is a prenup legally binding?
    In 2014 a report from the Law Commission entitled ‘Matrimonial Property Needs and Agreements’ included a draft Bill to try and ensure that prenups were formally recognised as legal documents. Today, a court will generally enforce a prenup if it has been made in accordance with existing guidelines. However, because prenups are not yet formally recognised as legal documents under the terms of a Bill, do not automatically assume that a court will recognise your agreement. It is possible to contest a prenup, even if you have tried to cover every eventuality.
  6. Will a prenup cover my golden years?
    Pension arrangements may be made well after the prenup has been signed. So again, you may need to revisit your agreement and call on the advice of post-nup and prenup solicitors to ensure that any future pension arrangements are included in amended agreements. 

And finally…

Is this the right time?
You’re young. You’re in love. You’re impulsive and prone to doing madly romantic gestures. But getting married isn’t nearly as romantic as you’d think. You’re entering into a partnership with someone you are (hopefully) going to spend the rest of your life with. It’s a decision that needs to be thought about carefully.

So if you're in the first throws of a relationship then put the prenup on pause until you’re absolutely sure that you’re both ready to move forward to the next stage.

Once you’re both ready to sit down in the cold light of day and work out the details, call our Family Solicitors for initial legal advice.

While it may not be the most wildly romantic thing you’ve ever done, will at least ensure that you’re both happy with your arrangements for the future.

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