I'm a family lawyer. Here's why - and how - to get a prenup

Independent

3 days ago

While hardly the most romantic aspect of wedding preparations, a prenuptial agreement is increasingly viewed as a practical necessity.
With many people entering marriage possessing existing property, businesses, or children from previous relationships, prenups are becoming a common consideration.
But for those contemplating such a step, the initial question is often where to begin.
Amy Harris, legal director of the family team at independent law firm Brabners, has outlined what a prenup entails, its implications, and how to approach the discussion, helping readers decide if it's the right choice for them.
What is a prenup?
Harris explains: 'A prenup is a legal agreement that's signed by a couple before they get married or enter a civil partnership.
'These agreements are bespoke documents, so they can be different for every couple. However, typically they will outline what will happen to a couple's assets and finances if that relationship ends, typically in divorce.'
While prenups are bespoke, they must adhere to certain legal requirements to be considered valid. For example, in the UK both parties must enter into it freely, without any pressure or duress from the other party.
'It's really important there's no duress or pressure to do it,' highlights Harris. 'There should also be full financial disclosure as well, so that both parties are entering into agreement with full knowledge as to what the other person has.
'In addition, both parties should get independent legal advice. It's really important that anybody entering into a prenups understands what it says and the implications of it for them as well.'
Should everyone get a prenup?
While prenuptial agreements can be beneficial for many people, couples should carefully consider the costs and benefits before deciding if one is right for them.
'It's something which is available for anybody who wants one, but you have to think about the cost of it as well,' says Harris.
'For a lot of people, it might be disproportionate to think about the cost of having a prenup, because they are bespoke documents and there is certain things that we have to do in terms of the advice process to get them across the line.
'I think prenups are most valuable for people who have something to protect that's valuable to them, like a property or a business. So, it may not be suitable for absolutely everyone, but it's certainly something worth thinking about.'
Harris also highlights that the circumstances and reasons why people enter into a prenup are wide ranging.
'A lot of younger people tend to have more of a business-like approach to marriage,' says Harris.
'We're not in a situation anymore where the man is always the main earner, it's likely that a couple are both working independently and have both got their own assets that they want to protect.'
However, she says that prenups still tend to be more common for older adults.
'Prenups are more common amongst people later in life, so those who might have established assets and careers,' says Harris. 'They might have had a difficult first divorce and want to protect their assets.
We often see that they are also keen to protect businesses that they've built over a long time.'
Harris has also observed that recent changes to inheritance tax have prompted more couples to take a strategic approach to protecting their wealth.
'We're finding with our clients that nuptial agreements are becoming a greater part of a family's plan,' says Harris.
'So, they are considering more gifting of interest in businesses and farms and things like that, and restructuring companies and shares and all that sort of stuff. But they're doing so on the provison that there is a nuptial agreement in place.'
Are prenups 100 per cent legally binding?
'It's important to say that, prenups are not 100 per cent binding in England and Wales,' highlights Harris.
'However, they are likely to be taken into account by the court if there was a full disclosure of assets, it was entered voluntarily, both parties had legal advice and everybody's had time to consider the agreement carefully.'
The agreement also needs to be fair.
'You couldn't have an agreement which says, I keep everything and you get nothing, for example,' says Harris.
'So, in those circumstances, when you've done all the right things and the agreement is fair, it's more likely to be upheld than not.'
How can people approach the idea of a prenup with their partner?
It can sometimes be helpful to refer to a prenup as an 'insurance policy'.
'I think that's the best analogy that I've found because people insure their house, but they don't do so on the basis that they're ever expecting their house to burn down, for them to need to claim on the insurance,' says Harris. 'So by doing a prenup, you're not tempting fate or saying divorce is likely. It's just a sensible, mature and pragmatic thing to.'
She has also noticed that a lot of clients tend to frame prenups as financial planning.
'For a lot of the prenups I have done this year it has been framed very much as financial planning, whether that's saying, oh my dad's making me do it, or it's part of some broader goal,' reflects Harris.
'I think it's also important to get the message across that a prenup is trying to protect both parties and is providing clarity, transparency and peace of mind.
'I have had a lot of clients who have said 'I know now if the worst happens, I know I'm going to be okay, because we've had that discussion, and there's openness around it'.
'I think it is really helpful and sensible to sit down and have those financial discussions at the start of a marriage, because so many people get divorced and don't even have a basic grasp of what the other person has.'
Who should you seek advice from about a prenup?
It is crucial to consult with a specialist prenuptial agreement lawyer when considering a prenup to ensure the agreement is legally sound, fair, and tailored to your specific circumstances.
'It's important to try and speak to the right specialist, so somebody who does a lot of these sorts of agreements,' advises Harris.
'It's about having a good connection and a good rapport with the person, and obviously checking out that they do have the relevant expertise to assist with the agreement, because it can obviously have a huge impact on people's future.'