While the numbers of couples entering into pre-nuptial agreements or ‘prenups’ are on the rise, there are still many common misconceptions about them. In a recent episode of the Netflix classic ‘Love is Blind UK’ (Episode 9 – “He Wants a Prenup”) it has become quite clear how commonplace some of these myths are.  

In the episode, a bride-to-be tells her friends that her fiancé has asked for a prenup and asks ‘should I be worried?’. In the discussion, her friend shares her opinion that such a request is controlling and that it would mean that the bride-to-be is effectively doomed.

The friend goes on to imagine the scenario whereby in “twenty years’ time, you’re happily married, love the guy, you’ve got two kids”. The bride-to-be asks whether you can change a prenup to which the friend answers ‘no’. Another friend asks “Do you think that’s a sign then that he’s already thinking about potentially separating?”.

To unpick these remarks and bust some of the common myths they relate to, let us consider the following:

What is a prenup?

A pre-nuptial agreement is a document drawn up prior to a couple’s marriage that sets out how they wish the marital finances to be dealt with upon any future breakdown of the marriage.

What goes into a prenup?

Before signing a prenup, couples must agree the contents so it essentially can contain whatever financial arrangement that the couple have agreed on. The common misconception is that prenups will say that one party keeps everything and the other gets nothing. This is not correct. While prenups can be used to ensure that certain assets are retained for example family businesses, property or inheritance, prenups can include whatever arrangements the couple agree including, for example, which assets are to be shared equally or in other proportions.

Legal status of prenups in the UK

In the UK, prenups are not currently legally binding and enforceable. The court retains the power to make what order they see fit taking into consideration all the factors in s25 Matrimonial Causes Act 1973. Following the Supreme Court decision in Radmacher v Granatino [2010] the Court will uphold prenups provided that certain criteria are fulfilled and unless, in the circumstances, it would be unfair to uphold the agreement.

One of the main considerations of the court remains the needs of the parties and if, for example, the arrangements in the prenup would mean that the needs of one party or a child of the family are not met, then the Court may decide not to follow it. If, however, the test is met, the parties can and should expect to be bound by the terms of the agreement.

In 2014 the Law Commission published a report recommending law reform to make nuptial agreements that meet certain criteria legal binding. This would mean that a Court would be prevented from making any order other than one in line with the terms of such a ‘qualifying agreement’. These changes have not yet been made but it is important that all prenups fulfil the criteria to ensure there is the best chance possible of the court upholding them if they need to be relied upon in the future.

Can you change a prenup? – The importance of review

The financial picture at the start of a marriage can be extremely different from that 20 years down the line and/or for example, if the couple have any children. This is why it is very important for a couple to ensure that they keep the prenup under review. Generally this is recommended to be on certain events. This could be upon any significant changes in circumstances, for example the couple having  children or a significant change in either of their assets or income. There would normally be a review every 5 years or so as well, regardless of any other significant changes.

Under the current law, if a prenup has not been reviewed at all throughout a long marriage and the changes in circumstances mean that it would result in an unfair outcome for one of the parties, it is a lot less likely that the court will uphold the agreement.

Pros and cons of a prenup  

As with most things, there are numerous pros and cons to having a prenup in place. For example, on the one hand, they are not romantic and, especially in the UK, people tend to find talking about money a little awkward. When such conversations come at a time when you will both have a lot to sort out planning the wedding itself, it can also seem rather bad timing. On the other hand, dealing with financial issues and being transparent about both of your financial situations at the outset of the marriage can improve communication, trust and even strengthen the relationship as a basis for the marriage.

Another example is that while the couple will incur legal fees in preparing and being advised upon the prenup it is often much less expensive than litigating about the division of the assets upon any future separation. The less acrimonious a separation, the better the couples’ working relationship can be preserved which is vitally important especially if the couple become parents together. Of course, if the couple never separate, the prenup would have effectively been a waste of time and money.

To me, considering a prenup does not mean that someone is already planning on separating. This would be the same as saying, considering travel insurance means that you are already planning on breaking your leg on holiday.

While they are not romantic or glamourous things, consider this: it is not nice to think about your house burning down but most people take the time to get buildings and contents cover and so, nobody likes to think about the possibility of divorce, especially during the exciting wedding planning stages but, taking the time to discuss such things can be a very sensible decision to make which can avoid lengthy, acrimonious and costly proceedings should the unthinkable happen. 

There are many other considerations regarding pre-nuptial agreement depending on each individual and couple’s situation. If you would like more information or advice about whether a prenuptial agreement is right for you, get in touch with our family team on 0800 138 0458 or email help@switalskis.com.