OUR SERVICES
Prenuptial & Cohabitation Agreements
Prenuptial agreements set out what will happen if your marriage breaks down at some future date, particularly what your financial arrangements will be. Some people prefer not to think about these things at a time when they are planning a future together, but other people find it helpful.
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Prenups – a brief guide to the law.
Prenuptial agreements are common in many countries but they are problematic in English law, because they sit where two conflicting legal principles meet. On the one hand the law is very keen on contracts and the idea that people should be held to their agreements. On the other hand, in the context of divorce law, the courts will always have the last say in determining what is a fair financial arrangement between a divorcing couple.
Until about 2010, the conventional wisdom was that prenuptial agreements were really not worth the paper they were written on because the divorce courts routinely overruled them. But that began to change with an important case called Radmacher-v- Granatino . At the time of their marriage Ms Radmacher was heiress to a hugely wealthy German family. Mr Granatino was a bright young investment banker in the City, with a great future in front of him. They signed a prenuptial agreement, which was quite common at the time in Germany, saying that if their marriage broke down he would make no claim on her inherited fortune. When they divorced nine years later things had changed for them. They had three children who were living with Mr Granatino who had become a university lecturer. The case was fought through the courts, doubtless at huge expense, and in the end the Supreme Court ruled that the prenuptial agreement should, largely, be upheld. So Mr Granatino received a significantly smaller settlement than he would have received, but for the separation agreement.
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That was a turning point, and since then the tide has run in favour of prenuptial agreements. There have been several important cases, some of which are reported on our ‘legal updates’ page, and the principle has become established that the courts will uphold prenuptial agreements, providing certain basic rules are followed. So the conventional wisdom is now that prenuptial agreements are, on the whole, a good idea, but they need to be drawn up very carefully, if they are going to withstand scrutiny of the courts in a subsequent divorce.
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What does a prenup cover?
Prenups are individual, so they vary widely in what they cover and what they say. Some of the things you might want to think about if you are planning a prenup would include: –
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What would happen to any assets either of you own at the date of the marriage – would they be treated differently from assets acquired during the marriage?
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Would an asset which one of you receives during the marriage, for example an inheritance or a gift from a family member, be treated differently from other assets?
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What would happen to your home in the event of separation – would one of you expect to be able to stay there, or would it have to be sold?
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What would happen if one of you were to die – what would you expect in terms of any will?
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Would either of you be entitled to receive maintenance from the other if you were to separate?
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What would happen if there were important changes, for example if you have children?
Can a prenup set out the arrangements for our children?
In broad terms – no.
I suppose it would be possible for your prenuptial agreement to set out what would happen to any children in the event you separate, for example who they would live with, how much time they would spend with the other parent etc etc. But in practice it is very difficult to predict so far in advance what the best arrangements would be, and if you had a disagreement which had to go to court, the court would probably attach very little weight to the agreement, if any.
And the court would not uphold any part of a prenup which tries to restrict financial support for a child, or financial claims which could be brought on behalf of a child.
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What are the basic legal requirements for a prenup?
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Every prenup is different and has to be drawn up carefully, but there are certain rules to follow: –
Each party has to set out their financial circumstances fully and clearly, so that each enters into the agreement knowing where the other stands.
Each party must have independent legal advice before signing the agreement.
There must be no coercion or unfair pressure to enter the agreement. Coercion takes different forms, but generally this point will be covered providing both parties have had independent legal advice from a qualified solicitor, and the timing of the agreement is not too close to the date of the marriage. Although it is not strictly a rule, the accepted wisdom is that it should be signed at least 28 days before the wedding.
There must be no attempt to exclude or restrict financial support for any children.
The agreement must meet both parties’ reasonable financial needs in the event of separation and divorce. This is a slightly elastic concept – what your reasonable needs are will depend to some extent on your particular situation. But a prenup which is very ungenerous to one party risks not being upheld.
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Can we draft our own DIY prenup?
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Not if you want it to be effective.
Of course you can draw up your own agreement if you want to, and you will probably find a precedent on the Internet if you search far enough. But a prenup will only be effective if it has been properly drawn up by a lawyer, and each party has had separate advice from a qualified solicitor.
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Can we have a prenup if we are already married?
Yes, you can. Although the word “prenuptial” implies that the agreement occurs before you get married, prenups as such have no special status and it is perfectly possible to have a prenup months or years after you get married.
Can we have a prenup if we are not getting married?
People who are cohabiting can have an agreement which deals with most of the same points you would expect to see in a prenuptial agreement. It is generally called a ”cohabitation agreement” rather than a prenup, or a “declaration of trust” if it relates to a particular property.
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How much does a prenup cost?
Prenuptial agreements are individual documents, which have to be drawn up very carefully, so the cost will vary from case to case depending on what you have in mind, and what your financial circumstances are. We would give you a clearer estimate, or quote before we start work, but as a guide you should think in the region £1,000 to £1,500.
Can you advise both of us about our proposed prenup?
No, I can’t. I would be very happy to have an initial chat with both of you about your prenup, the sort of thing you might have in mind and what you need to do, but if the prenup is to be effective each of you need to have separate legal advice as the agreement is drawn up and before you sign it. So one of you will have to go and see another solicitor.
How do we start?
If you’re thinking in terms of a prenup the next step is to get in touch. You can either email me (j.pratley@appletreefamilylaw.com) or send a message using the contact page of this website. We can have an initial chat by phone to talk about what you have mind – remember, first consultations are free
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