There is still a bit of wariness about raising the topic of a prenup with a fiancée or signing a prenuptial agreement.
In this blog, our Manchester family solicitors look at whether a prenup is a good idea.
For expert family law advice call our team or complete our online enquiry form.
Is a prenup agreement a good option?
Manchester prenup solicitors are often asked what the point of a prenuptial agreement is if it isn’t legally binding in the English divorce court. However, although a prenup agreement isn’t binding on the English family court, Manchester prenup agreement solicitors say that provided the agreement is drawn up properly it could be given substantial weight. In real terms, if you are a high net worth individual, a prenup could save you millions. If you aren’t a high net worth individual, a prenup agreement is still a good idea because:
The prenuptial agreement could ring fence or safeguard pre-marriage acquired assets, such as a family inheritance, a trust fund, a family business or farm, or a pension that you contributed to many years before your planned marriage
The prenup could protect children from an earlier marriage or relationship by making sure that if you get divorced your second wife or husband doesn’t walk away with assets that you brought to the marriage or that you need to provide for your children from an earlier relationship
If you draw up a prenuptial agreement before the marriage and the terms are fair to both of you the agreement should reduce animosity and legal costs if you decide to separate at a later date
When will a court follow what is in a prenuptial agreement?
If you are contemplating signing a prenuptial agreement then it is essential to know when a court will, or is likely, to follow what is in the prenuptial agreement when ordering a financial settlement as part of divorce proceedings.
There are three potential scenarios if you sign a prenup and either you or your spouse later start divorce proceedings:
The divorce court ignores what is in the prenuptial agreement – either because the court doesn’t think that the agreement was drawn up with safeguards in place or doesn’t meet one spouse’s needs
The divorce court places weight on the prenuptial agreement and although the agreement isn’t followed to the letter the divorce court makes a financial settlement award that is less generous than it would have made had the prenuptial agreement not been signed
The divorce court follows the agreement recorded in the prenup and makes a financial settlement and financial court order in accordance with the provisions in the prenup
You are more likely to get the divorce court to follow options 2 or 3 if the court is satisfied that the prenup was freely entered into by each party to the agreement with a full appreciation of its implications unless in the circumstances prevailing at the time of the separation or divorce it wouldn’t be fair to hold the parties to the terms of their prenup agreement.
It is often assumed that there is no free will involved in signing a prenuptial agreement as either the intended husband or wife has all the power and the other person feels that they have little alternative but to sign the prenuptial agreement if they want to get married. However, prenup solicitors say that every prenuptial agreement should be freely entered into to avoid the divorce court ruling that one person didn’t understand the agreement and therefore shouldn’t be bound by its terms.
To give the prenuptial agreement the best chance of being upheld in any subsequent divorce and financial proceedings, the following requirements should be met:
The terms of the prenup must be fair and meet the needs of the parties and any children who are dependent on them. If the agreement isn’t fair, it isn’t likely that the agreement will be fully upheld or even partially upheld. A good prenup solicitor can advise on the fairness principle the divorce court uses to guide you on what provisions to put in the agreement
The prenup was entered into voluntarily with no undue influence or duress and of your own free will and signed and executed as a deed
There is financial disclosure of each other’s financial circumstances. Financial disclosure is essential even if you are wary about detailing the full extent of your net wealth or your partner is embarrassed about their debts or income. Unless you know what the other has you can’t make informed choices about what should go in the prenup and what would be fair provision if you were to separate
The prenup should be signed in advance of the wedding. The recommendation by the Law Commission report is that prenuptial agreements should be entered into at least 28 days before the marriage or civil partnership
Independent legal advice on the prenup is taken. That is to ensure that you both understand the legal consequences of signing the prenup and what you might be gaining or losing by entering into the prenuptial agreement
Should I sign a prenup?
You should only sign a prenup if you are willing to be bound by the terms of the agreement. You should not enter a prenuptial agreement thinking that you can argue, in any subsequent divorce proceedings, that the terms of the agreement are unfair to you. That argument may not succeed if the agreement was drawn up properly with the safeguards in place.
Likewise, if you have substantial pre-marriage acquired wealth or you want to ring-fence specified assets or you don’t want financial arguments at the time of any divorce proceedings a prenup can be a sensible option for both you and your intended husband or wife.
We are Manchester Prenup Solicitors
Manchester and Cheshire-based Evolve Family Law solicitors specialise in preparing relationship agreements and advising on prenuptial agreements.
For advice about a prenuptial agreement or relationship agreement or other aspect of family law call us or complete our online enquiry form.
It is trite to say that the world is getting smaller but when it comes to family law, it is true as there is an increasing number of UK families with connections to more than one country. That has led to a rise in the number of requests for help from families with international family law concerns or requiring advice on an international prenuptial agreement.
For expert family law advice call our team of specialist family lawyers or complete our online enquiry form.
International prenuptial agreements
As specialist family law solicitors with many years of experience in preparing prenups and postnuptial agreements, we have seen an increase in inquiries about nuptial agreements with an international element, not just from couples who are based in Manchester and the North of England, but also from couples who are based in London and the South East of England wanting expert advice at a competitive cost. That increase in inquiries is down to the following trends:
The number of UK residents meeting and marrying partners from other countries
The number of couples who own assets overseas such as a holiday home or a business based abroad
Couples who are UK based but whose families or family assets are based abroad; normally their families are passing some of their wealth to the marrying couple (to give them a financial head-start, or for tax planning reasons) but the families realise that this wealth is vulnerable to divorce without a prenup in place
The number of people who are a beneficiary of an offshore trust
The number of overseas families who have settled in the UK but already have a prenup in their country of origin or in the country where they hold assets
The law on international prenuptial agreements
Although the world is getting smaller divorce law has not been globalised. Divorce laws, practices, and procedures vary widely from country to country. The unwary can therefore falsely assume that having signed a prenup agreement in country A that their agreement will be binding in their spouse’s country of origin B, or if they decide to emigrate to country C.
Whenever the prenuptial agreement solicitors at Evolve Family Law are asked to prepare a prenup it is important to ask the right initial questions. For international prenups the questions should include:
Country of domicile for both parties to the marriage. This can be different from the country the engaged couple lives in as it is a complex legal concept
Countries where any existing assets and property are located
Countries where any future assets and property are likely to be located
The country or countries that one or both of the couple may relocate to in the future, for example, the plan may be to spend a lot of time in the Florida holiday home
To add to the complexities of advising on prenuptial agreements it is important to remember that Scotland, Ireland, the Isle of Man, and the Channel Islands all count as separate countries.
If the answers to any of these questions reveal a foreign connection, it is really important to work out which country the prenup should be based in. For quite a few prenuptial agreements the answer is not England.
Getting international prenuptial agreements right
Family lawyers should not be wedded to their own jurisdiction and assume that a prenuptial agreement should be prepared in England as that is not necessarily the best decision for a client. It can make a massive difference to how assets are divided if a couple split up without having either signed a prenuptial agreement or if they did not get an agreement prepared in the country that best suits their international links and circumstances. That’s because in some countries prenup agreements are treated as legally binding and in others they ‘are not worth the paper they are written on’.
Even if England is the right country for the prenuptial agreement to be prepared in, it is important to think about whether a ‘mirror’ prenup agreement is needed in the other countries the couple are linked to, or at least having a specialist family lawyer in that other country having some input on the wording of the prenup, so that the agreement is executed in accordance with the relevant local law and the agreed country for choice of jurisdiction is recognised.
Is an international prenuptial agreement worth signing?
With or without international aspects, our family law solicitors are asked if it is worth signing a prenuptial agreement. Invariably the answer is that a prenup is a sensible piece of relationship planning: No one who is getting married thinks their marriage will fail, but almost half do. It is also really helpful for the couple to think properly about their future financial security if things do go wrong. Also, the English divorce courts now rarely go against a prenup that has been put together in the right way.
Preparing a prenup includes an element of speculation as who knows what may happen in relation to the couple’s future life together. However, it is normally possible to build in enough flexibility to deal with life changes. If life takes an unexpected course, such as a return to the UK after a marriage abroad with a foreign prenup, it is as well to dust off the document and get some advice on whether it remains fit for purpose.
For expert family law advice call our team of specialist family lawyers or complete our online enquiry form.
In a straw poll the majority of engaged couples could see the sense in signing a prenuptial agreement before their wedding but they weren’t sure how to go about getting one. In this article prenup agreement expert, Robin Charrot, looks at how to get a prenup.
Are prenups unromantic?
If you are engaged to be married you may be worried about raising the idea of a prenuptial agreement with your fiancée or fiancé. That’s totally understandable as no one wants to appear unromantic or to cast a pall over the engagement celebrations.
Whilst prenups may not be romantic they do show that you care and that you are taking your future seriously. That’s because a prenuptial agreement has to be ‘fair’ to both a husband and wife or to both civil partners. Therefore, if you are the financially weaker party to the marriage or civil partnership, the suggestion of a prenup, whilst not romantic, can offer you peace of mind and financial security.
Who wants a prenup?
As prenuptial agreement solicitors we are often initially approached by third parties wanting to make initial enquiries to help sort out a prenup for an engaged couple. There can be many very valid reasons for this, such as:
Parents wanting to protect the deposit on the family home because they gifted the deposit money to their son or daughter.
Grandparents wanting to make lifetime gifts to a grandchild as part of estate planning and wanting to keep gifted money ‘in the family’.
A parent or grandparent, having transferred assets to a child to avoid care home fee issues or to minimise inheritance tax, wanting to ensure that the transferred property is ring fenced in the prenuptial agreement.
A family member who has transferred shares in a family business to the younger generation as part of business and retirement planning.
The trustee of an onshore or offshore discretionary trust where the trustees anticipate making future capital or income distributions.
A family member who has left a substantial legacy in their will to a family member and who wants to ensure that their legacy is protected through the prenuptial agreement ringfencing it.
A parent or family member has been through a difficult divorce and wants to protect the engaged couple by ensuring they sign a prenuptial agreement to ensure that they don’t end up in a bitter and expensive court battle over the divorce financial settlement.
A parent or other family member is from overseas where prenuptial agreements are common place.
An accountant or financial advisor or other professional who wants to ensure that a client is financially protected, for example, where one party to the marriage has already inherited a lot of money or won the lottery or is a sportsperson with exceptionally high earnings but a time limited career span.
In addition, many engaged couples are also proactive in seeking out prenuptial agreement advice. For example, a financially weaker party to the marriage may actively seek a prenuptial agreement to show they aren’t a gold digger or to show extended family that they aren’t marrying for financial reasons. Equally, the financially stronger party to the engagement may want to protect their partner with the security of a prenuptial agreement that meets their needs should the couple take the decision to separate at a later date.
How to get a prenup
The often-asked question is ‘how to get a prenup’ whereas the question really is ‘how do I get my partner to agree to a prenuptial agreement and how do I tactfully raise the topic?’
Every couple is different so what works for one won’t work for someone else but prenuptial agreement solicitors say it is best to avoid the topic whilst on bended knee or when saying yes. Equally, it is best not to leave the question of a prenup to the last minute when you or your partner are stressing about wedding arrangements and last-minute preparations. In addition, for a prenup to carry weight with the family court, it should ideally be signed twenty-eight days before the wedding. That means the topic of the prenup agreement has to be raised well in advance of the wedding date so that the contents can be discussed and agreed.
One of the best ways to raise the topic of a prenup is in a general discussion about your future together. For example, you may be planning to move in with a partner or buy a house together or contemplating starting a family.
Another possibility is to raise the topic as part of your financial paperwork. For example, if you are planning on writing a new will in contemplation of your marriage or signing a new power of attorney or taking out additional life insurance.
The key point about a prenup agreement is that the agreement should protect both of you as the agreement needs to be fair and meet both of your respective needs to be given weight by the family court.
Conditions for a prenup
Prenuptial agreement solicitors say unless both of you comply with some conditions for a prenup agreement the document may carry little or no weight and therefore may be a pointless exercise. The conditions for a prenup are:
The prenup must be freely entered into.
You and your partner must fully appreciate the implications of entering into the prenup.
The agreement must not be significantly unfair to one spouse or civil partner.
You and your partner must each have your own independent legal advice.
You and your partner must each provide financial information about your assets, income and any debts.
A prenup should ideally be finalised at least twenty-eight days before the wedding.
Prenuptial agreement solicitors say that if you are interested in learning more about the option of signing a prenuptial agreement then the best way forward is to have a chat with an expert so you get a better idea of how a prenup may help and protect your family.
We are family law and prenuptial agreement solicitors
For legal help with a prenuptial agreement call us or complete our online enquiry form.
The short answer to the question ‘are prenuptial agreements legally binding in the UK?’ is no but please read on as prenuptial agreements can save you a lot of money. They are the financially prudent and the sensible, if unglamorous part, of wedding planning.
What is a prenuptial agreement?
A prenuptial agreement is an increasingly common document that an engaged couple enter into prior to their marriage. If someone isn’t sure what a prenuptial agreement is or what it does then they can be more wary about signing the document so it is best not to make assumptions about your partner’s understanding of what a prenuptial agreement is and will do.
In essence a prenuptial agreement will govern how a couple will regulate and resolve their financial affairs in the event of a separation. The prenuptial agreement is bespoke to the couple and can be as detailed or as simple as the couple prefer.
Prenuptial agreements and UK family law
Now is a good time to answer the question ‘are prenuptial agreements legally binding in the UK?’ That’s because the leading family law case report on prenuptial agreements was ten years old in October 2020. The case remains good case law that is followed by family law judges when they are asked to consider a prenuptial agreement in divorce and financial settlement proceedings. The judges follow this case report, and later decided cases, in the absence of any UK legislation on the status of prenuptial agreements in UK divorce law.
The leading family law case on prenuptial agreements remains the 2010 UK Supreme Court decision of Radmacher v Granatino.
What is the legal status of prenuptial agreements?
A prenuptial agreement doesn’t have any statutory or legislative basis and isn’t a binding contract in the same way as a commercial contract. However, that doesn’t mean that a prenuptial agreement doesn’t have legal status. It gets its status from case law, particularly from the leading court case of Radmacher.
Prior to the case of Radmacher prenuptial agreements were thought to be contrary to public policy because they might encourage separation, though the reality was couples wanted to enter into prenuptial agreements, not with a view to separation, but to cover that eventuality, in the same way couples organise life insurance, Wills and Lasting Powers of Attorney. The Radmacher case acknowledged the importance of couples being able to freely enter prenuptial agreements.
The status of prenuptial agreements after the Radmacher court case
In the Radmacher case a French husband and a German wife entered into a prenuptial agreement three months before their marriage. In essence, the prenuptial agreement said that neither the husband nor the wife would make a claim on the other’s property if they separated and got divorced. The couple had two children together but eventually separated. The husband made a financial claim and the wife said the prenuptial agreement should be binding on him.
During the financial court proceedings the court had to assess the relevance of the prenuptial agreement. The wife, who was heir to family wealth, said the prenuptial agreement should be binding but the husband argued that it wasn’t. His argument was based on the fact that he did not have legal advice when he agreed to the prenuptial agreement, there had been no financial disclosure or negotiations before the agreement was signed and the couple had children after entering into the agreement.
The court case went all the way to the Supreme Court and that’s why it remains a leading case on the status of prenuptial agreements in financial court proceedings. The Supreme Court said that ‘’the court should give effect to a nuptial agreement that is freely entered into by each party with a full appreciation of its implications unless in the circumstances prevailing it would not be fair to hold the parties to their agreement."
The key points from the Radmacher case is that your prenuptial agreement must be freely entered into and should be fair.
What is a freely entered into and fair prenuptial agreement?
As it is ten years since the Radmacher decision not only are more couples choosing to enter into prenuptial agreements but the family court is also being asked to look at the relevance of prenuptial agreements in divorce and financial proceedings.
If you are looking at signing a prenuptial agreement then it is important to ensure that your agreement is drafted by a prenuptial agreement solicitor who knows what the court will look at when deciding whether to enforce the agreement or to give it weight in any financial court proceedings.
Whilst prenuptial agreements are not currently automatically enforceable as a contract the family court will either enforce it or give weight to the terms of the prenuptial agreement (thus potentially reducing the size of the financial settlement that would otherwise have been awarded in divorce and financial proceedings ) if the following formalities are met:
The terms of the prenuptial agreement must be fair to both parties and must meet the needs of any children
There must have been financial disclosure so that the husband and wife each had an understanding of the other’s financial position so they could make informed decisions about the content of the agreement and whether to sign it
The prenuptial agreement should be signed at least twenty one days prior to the marriage ceremony or civil partnership
The agreement should be freely entered into with no duress or undue influence or misrepresentations about signing the prenuptial agreement
Both parties to the prenuptial agreement should take their own independent legal advice before signing the document.
Is a prenuptial agreement a good idea?
Since the Radmacher case prenuptial agreement solicitors have seen a substantial rise in enquiries about both prenuptial agreements and postnuptial agreements. That is because, in today’s age, couples want to plan and feel financially secure, whatever the future holds for them. To a family solicitor that is just sensible and prudent planning from a committed and switched-on couple who don’t want to engage in expensive court litigation should they decide to separate at a later date.
Our Prenuptial Agreement Solicitors
For help with your prenuptial agreement or postnuptial agreement call the friendly, specialist prenuptial agreement solicitors at Evolve Family Law or complete our online enquiry form. Our offices in Holmes Chapel, Cheshire and Whitefield, Manchester are open with social distances measures in place for face to face meetings, however an appointment is required. We also offer remote meetings by appointment by video call or telephone for those who prefer not to travel.
Every fiancée (or rather their family solicitor) should ask the question, “What happens if you sign a prenuptial agreement and your husband dies?’’ before a prenuptial agreement is signed. This is because although prenuptial agreements record how assets will be divided should a couple separate or divorce, the agreement can also set out how much a spouse will receive if their husband or wife dies. The prenuptial agreement could state that a spouse cannot make a claim against the estate if the will is consistent with the terms of the prenuptial agreement.
Many people query the point of putting in details of what a husband or wife will receive following their spouse's death, in the prenuptial agreement. After all, prenuptial agreements are about separation or divorce and wills are for death and estate planning. However, as Manchester divorce solicitors we normally say that it is a good idea to detail what provision will be made available to a spouse in the event of a death. This is especially the case where there are children from earlier relationships to consider or where a spouse does not plan to leave their entire estate to their husband or wife.
The Case of Mrs Hendry
The widely reported case of Mrs Hendry is an excellent example of why it is important to have a prenuptial agreement and how it can assist if there is a claim against the estate.
Mrs Hendry came from the Philippines to marry her husband. Mr Hendry already had two adult children from a prior relationship, the youngest of whom was twenty-one at the date of Mr Hendry’s death.
The marriage between Mr and Mrs Hendry did not last. Mrs Hendry filed for divorce and asked the family court to give her half of Mr Hendry’s assets. Mr Hendry died before the family court decided how the money should be divided.
Mr Hendry’s will left his estate to his children and Mrs Hendry was left a small pension. Negotiations started between Mrs Hendry and the two children. Mrs Hendry wanted half the estate of her late husband. The children initially offered her what she would have got under the couple’s signed prenuptial agreement. They later offered her a third of the estate.
Agreement could not be reached between the widow and children, resulting in Mrs Hendry making a claim against the estate. Mrs Hendry asked the court to make ‘’reasonable provision’’ for her from the estate under the Inheritance (Provision for Family and Dependants) Act 1975. The judge rejected the claim because Mrs Hendry had not made the application within the six-month deadline from the date of grant of Probate.
What makes the case interesting to Manchester divorce solicitors and lawyers advising on wills and claims against estates is that Mr and Mrs Hendry signed a prenuptial agreement prior to the marriage. The prenuptial agreement said, in the event of a divorce, Mrs Hendry would get a payment of £10,000 and a one-way ticket back to the Philippines.
It is not clear from the media court case reports what, if anything, the prenuptial agreement said about what would happen if Mr Hendry predeceased Mrs Hendry. However, the judge dealing with the estate claim commented on the fact that the prenuptial agreement only made limited financial provision for her.
In the case of Mrs Hendry, she was time barred from making a claim under the Inheritance (Provision for Family and Dependants) Act 1975. However, if she had not been time barred, the fact that she had signed a prenuptial agreement and was separated from Mr Hendry at the time of his death would have been weighed up, together with the circumstances surrounding the signing of the prenuptial agreement and the needs of Mr Hendry’s children.
What can we learn from the case of Mr and Mrs Hendry?
There are some simple lessons we can take from this particular case:
The importance of signing a prenuptial agreement, and preferably detailing what provision should be made on both divorce and death for a spouse (the estate provision is normally more generous if the couple are living together at the time of the spouse’s death);
The need to review wills after a separation or divorce and, if necessary, amend them and/or provide a letter of explanation for testamentary bequests;
The importance of complying with deadlines if you want to make a claim against an estate and the benefits of taking specialist legal advice.
For help with prenuptial agreements and financial settlements on divorce or claims against estates please contact us