FAQs about Pre-nuptial Agreements

Pre-nuptial agreements are often only seen as an option for celebrities or the very rich, but increasing numbers of couples are choosing to set out the terms of their marriage and protect themselves in the event of future issues. Drawing up a pre-nup may not be the most romantic of activities for you and your soon-to-be spouse, but it can actually serve as a practical plan for your lives together – how you intend to divide responsibilities and prepare for the future.

If you’re unsure whether you need or want to draw up a legal agreement before marriage, civil partnership, or even simply moving in with your partner, here are some commonly-asked questions to help you decide:

What is a pre-nuptial agreement?

A pre-nuptial agreement or ‘pre-nup’ is a formal written agreement made by a couple intending to get married or enter into a civil partnership which details what will happen to their assets if they ever get divorced. It’s up to you how you decide to divide your estate and possessions, and you will need to take into account imbalances in earnings, provision for children or any dependents, and the ‘relative worth’ of each partner. For example, if one party works and the other puts their career on hold to look after children, you may decide that you have both provided equal ‘worth’ to the marriage and should split your assets 50/50, even though only one of you has been paying the mortgage and bills. Individuals may also exclude certain assets from the ‘matrimonial pot’ if they choose, meaning that they cannot be divided up or used to fund a divorce.

Can pre-nups be created for same-sex marriages and civil partnerships?

Yes, pre-nuptial agreements work in exactly the same way for civil partnerships and same-sex marriages.

Can unmarried couples draw up a pre-nup?

Yes, and since the law does not recognise ‘common-law marriage’ in the case of separation, it’s almost more important for unmarried couples to set down terms for their partnership. Cohabitation agreements work in much the same way as pre-nuptial agreements, and provide legal protection for unmarried couples who live together.

Can pre-nuptial agreements be created after marriage?

Yes, but in this case the agreement would be post-nuptial. If possible, it’s always better to create an agreement before a marriage or civil partnership takes place – you may discover you have very different ideas about your finances!

Are pre-nuptial and cohabitation agreements legally binding?

In order to be legally enforceable, nuptial and cohabitation agreements must state they have been made with the intent of having legal force and must comply with certain conditions.  It is always a matter for the court as to how to divide the family assets, however these agreements will be seen as very strong evidence of your intentions. Provided that your agreement is carefully written, directing and any resulting order would lie within the normal range of orders a court would make, it will have a significant influence on the court’s decision.

Can a pre-nuptial agreement be changed once it has been drawn up?

Absolutely. Providing that both members of the contract are in agreement, you can ask your solicitor to make whatever changes you like after the document has been drawn up. 

Can I use a cheap DIY prenuptial agreement?

DIY legal solutions may seem like a fast fix but they rarely provide the protection you will need in the case of a court case or dispute. Each case is unique and requires the analysis of a qualified family lawyer who can tailor the contract to your situation and requirements. A cheap DIY contract will probably end up costing you more in the long run as it may need to be re-drafted by a professional or cause you to enter into a long and expensive battle only for the court to disregard it.

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Working with a solicitor to draw up a professional pre-nuptial or cohabitation agreement is a simple and effective way to secure your marriage from future problems. Nobody wants to imagine the breakdown of their relationship but just as insurance policies help to safeguard you and your loved ones in the event of unforeseen circumstances, a pre-nup protects you from a stressful and confrontational court case should your marriage come to an end. For more information on legal agreements for marriage, civil partnership and cohabitation, contact the family law team at Frances Lindsay & Co.