Busting 7 Prenup Myths

By Francesca Davey

Senior Associate

A Prenup is Only for Wealthy People

Reports, and our experience, show that prenuptial agreements are becoming more popular amongst millennials as they are more career focused and aware of what use they want to put their assets to. In married households of increasingly two incomes and two sets of assets, the concept of joint matrimonial property is naturally changing with the times. Some business and trusts will require that an interested party has a prenup when they get married so that the business or trust is protected.

Prenups are used whenever two people want to regulate their financial arrangements during marriage and, if they separate, understand what is joint and what is separate. This is particularly necessary when there is a disparity in income or wealth, a second marriage, contributions from family members, e.g. deposit for a family home, and existing children to provide or prepare inheritance for.

A Prenup is Only for Married People

The so-called ‘no-nup’ is increasingly popular. Otherwise known as a ‘living together agreement’ or ‘cohabitation agreement’, it is very important for two people who live together to have a clear arrangement about who owns what and who pays for what. This is because they are otherwise unprotected by the laws and regulations which set out how property is owned between spouses. There is no such thing as a ‘common law marriage’ and without setting up protection for yourself and your family in a no-nup agreement you may be left in a position which was never intended.

We Can Put Whatever You Want in a Prenup

Yes and no.

You can put in what ever you want but the enforceability of any individual clause is a different question. The validity of the prenup terms can assessed by a family court judge under the legal concept of ‘fairness.’ So putting a financial penalty on a spouse, by way of real life example, for looking at another person in an ‘inappropriate way’, is unlikely to hold any weight at all. The point of the agreement is not to regulate the relationship itself, but to put together a reasonable and fair arrangement for how your money will be dealt with.

I Don’t Need a Prenup if I’m Not Planning to Get Divorced

Firstly, the prenup sets out how finances are to be managed during the marriage and this can be a useful exercise for any couple to go through when planning all other aspects of their future life together. Secondly, the sad fact is that many people who get divorced probably didn’t plan to. The prenup acts to take the dispute and stress out of the process if that is where you end up.

I Don’t Need a Lawyer to Sign a Prenup

To be a qualifying prenuptial agreement in the UK, both parties to the agreement need to have received independent legal advice on the agreement and confirm the same in the document. This is usually recorded by a signed statement from the lawyer confirming that advice was given.

If the advice is not taken by one or both parties to the agreement, that could give you a reason to challenge the validity of the agreement in the future, making it worthless.

We Sign the Prenup When We Get Married

The agreement needs to be signed 28 days or more before the wedding day. This is to ensure that there is no suspicion of duress or undue pressure, as being asked to sign a document like that just before the ceremony is likely to be another reason the agreement could be challenged.

If you’ve got closer than 28 days before the wedding then you can always sign it after the wedding as a ‘postnup.’

Realistically, you should start planning as soon as you can to get the agreement done in good time so you can then focus on other things in the run up to the wedding. If you have assets or interests in another country, you might need to get lawyers in that country involved to make sure the agreement functions in both jurisdictions. This can take some time.

A Prenup Isn’t Valid in Court so it Doesn’t Mean Anything

As things currently stand, a prenup or postnup is not binding in court. This means that if you separate a judge can still have the final say over how your matrimonial finances are dealt with. That said, if the agreement ticks all the boxes to be a qualifying prenuptial agreement, then the court has to take its intention into account and will try to uphold it terms unless it would be unfair in the circumstances.

The view is that it is not for the court to override an agreement between two consenting people that has been willingly entered into. A court can uphold all or part of a prenup, or can change one or all of its terms.

There is a chance that they will become binding in the future, as divorce laws are currently being scrutinized and there is appetite for reform. Having one in place is the best way we have of avoiding future lengthy disputes in court.

To find out more about pre or postnuptial agreements and how we can help you, please visit our Relationship Agreements webpage or fill in our online enquiry form.