Prenuptial AgreementsFrequently asked questions

Q.Who pays the costs of a prenuptial agreement?

A. This is a matter for negotiation between the couple, both of whom will need to take separate independent legal advice from solicitors of their choice.   It is important that both parties instruct lawyers who have experience in dealing with Prenuptial Agreements, as they are still relatively unusual in our jurisdiction. Where one of the partners is economically stronger than the other, it is usual for the economically stronger partner to pay the costs of both parties.

Q. How do I raise the subject of having a prenup with my fiancé(e)?

A. We understand that having to think about what should happen if your marriage were to break down at a time when you are making your wedding plans and looking forward to your future together as a couple, can be very awkward and uncomfortable. We can help with this by making practical suggestions about how to approach the discussions you will need to have with your partner. This can include having therapeutic support, alongside the legal process of negotiating the terms of your Prenuptial Agreement.

Q. How does family law in relation to Prenuptial Agreements in England and Wales differ from other countries?

A. In many other countries (e.g. Australia and most states in the USA) Prenuptial Agreements are legally enforceable. They are also enforceable in most other European countries, which have civil law jurisdictions. In such civil law countries they have the concept of a marital property regime,  either imposed on or chosen by the parties. In those civil law countries the function of a Marital Agreement is to choose a marital property regime (usually separation of property) and/or to contract out of the regime which would otherwise be imposed on the couple (usually community of property). However, in English law, we do not have the concept of a marital property regime. The function of a prenuptial agreement in England and Wales is to provide a more certain outcome to the financial aspects of a divorce, rather than the uncertainty of an outcome based on the Court's discretionary jurisdiction to deal with the financial aspects of the divorce.  The law in England and Wales could change if the government follows recommendations made by the Law Commission in February 2014 that legislation should be introduced to enable couples to make legally binding prenuptial and postnuptial agreements ('Qualifying Marital Agreements'), subject to certain conditions.

Q. What will happen if we get divorced if we do not have a Prenup Agreement?

A.The Court will determine the outcome of the financial aspects of your divorce, unless you are able to reach agreement between yourselves as to what should happen. After a long marriage which has produced substantial wealth it will be usual to divide the assets of the marriage equally, whether or not the economically weaker partner has made any financial contribution to the marriage. This is because the contributions of the homemaker/carer spouse are regarded as of equal value to welfare of the family as the contributions of the moneymaking spouse. If you do not want this to happen, you would have to try to persuade the court that it would be unfair to divide the assets equally.

Q. If Prenuptial Agreements are not legally enforceable, does it matter if I sign one? I am the economically weaker partner.

A. You should only sign a prenuptial agreement if you are prepared to accept the financial provision that is set out in the agreement. Although the Court might not uphold the agreement, in the event of a breakdown of the marriage, there will be a presumption that you intended to be bound by it and that it should be upheld. Moreover, the law could change, as The Law Commission has recommended that Prenuptial Agreements should become legal enforceable in the future, although any change in the law is unlikely to apply retrospectively to your Agreement.

Q. Is there any advantage to me as the economically weaker partner in entering into a Prenuptial Agreement? My partner has told me that he is not prepared to get married without a Prenuptial Agreement.

A. See the answer to the question above. The purpose of getting a Prenuptial Agreement from the point of view of your partner will be to protect his wealth by avoiding or reducing the impact of the court's discretionary jurisdiction in the event of the breakdown of the marriage. However there will be some advantage to you in that the financial outcome as set out in the Prenuptial Agreement will be more certain and you will know in advance what to expect in that unhappy event. Moreover, although you will almost certainly be worse off in the unhappy event of a divorce after having signed a Prenuptial Agreement than you would be without one, you will be in a very vulnerable legal position in the event that you continue to cohabit with your wealthier partner rather than getting married. This is because, in this jurisdiction, there is no legal status of being a "common law wife", contrary to common belief and the legal rights of a cohabitee in the event of the breakdown of a living-together relationship are very limited indeed. .