Why should I enter into a prenuptial agreement?

By Melissa Gire, Associate Solicitor, Family & Matrimonial

According to a new independent research report, nine-in-ten (89%) UK couples who are married or in a civil partnership do not have a prenuptial agreement (prenup) in place.  

The most common reason cited by the survey participants (32%) when asked why they do not have a prenup in place is that they see no risk of a separation in the future. Interestingly, as of 2021, the percentage of marriages ending in divorce was around 42%, which is significant.

Prenuptial agreements are primarily used to safeguard the assets, including businesses, each brings into the marriage, and inheritances and gifts received during the marriage. Whilst prenups are not strictly legally binding under English law, if they are professionally drafted with both parties freely entering into it without any pressure, with the benefit of independent legal advice and honest disclosure of your financial circumstances, then there is a very good chance that they will be upheld in court.

There is a misconception with many clients that prenuptial agreements are only for the wealthy seeking to protect their assets before marriage. In the modern world, prenups should in fact be seen as a valuable tool for most couples, regardless of their financial circumstances. So why should all couples consider entering into a prenuptial agreement before their wedding?

• Clarity – You and your partner can make it clear to one another that certain property belongs to you alone and will not be shared during the marriage or on any future divorce. Such property is usually referred to by family lawyers as ‘non-matrimonial property’ and a prenup will provide clarity as to the extent of each other’s non-matrimonial property and their values.
• Transparency – you and your partner should provide financial disclosure of assets and income in the prenup so you will both know at the outset of the marriage the value of each other’s assets, which will assist in any negotiations.
• Certainty – You and your partner can agree at the outset of the marriage how your finances will be divided if you later separate or divorce. This would save the time, stress and uncertainty of litigating about the finances if there is a later divorce or separation.
• Protections of assets – You and your partner can protect assets that you wish to ‘ring fence’ from one another, such as inherited assets, family heirlooms, property acquired before the marriage or an interest in a family business.  
• Provision on death – The prenup can set out what should happen to each party’s assets on death, which can support any provisions contained in a Will.  
• Freedom to agree your own terms – You and your partner may have specific plans for dividing your assets if you divorce or separate. A prenup provides the freedom to agree your own terms without the court imposing a solution on you.

If you are considering a prenuptial agreement or want to discuss your options, then please do not hesitate to contact our Family & Matrimonial team - Melissa Gire on email: meg@cooperburnett.com or Gemma Gillespie on email: gjg@cooperburnett.com or tel: 01892 515022.‍

This blog is not intended as legal advice that can be relied upon and CooperBurnett LLP does not accept any responsibility for the accuracy of its contents.