Should I ask for a prenup and how can I do it without upsetting my partner or family?
Increasingly couples in England and Wales (different laws apply in Scotland and Northern Ireland) are signing up to prenuptial agreements to protect their assets in the event of divorce. These are some of the questions I am frequently asked:-
- Are such agreements binding?
Not automatically under the law as it stands at present. However, the courts are increasingly holding divorcing couples to these agreements. That is especially so in the case of foreign couples as prenups may be binding in their own countries.
- What about agreements involving English couples?
Yes, these can be enforced but not automatically. The outcome has to be fair. The parties should have each had legal advice and there should have been full disclosure of assets. I always say that these documents have magnetic importance and should be drafted with great care.
- What will my parents think?
In practice, it is often parents who are anxious to ensure that any assets they hand down (or have already handed down) are protected. Parents are often the force behind the prenup and this is frequently the case where there is a family business or trust to protect.
- When shall I raise it with my partner and how?
Ideally shortly after the engagement is announced so they have lots of time to get used to the idea. Prenuptial agreements have more chance of being binding if they are signed at least 21 days before a marriage so that no‑one can allege duress. It is certainly not a good idea to sign it the week before the wedding. It may not be as sensitive an issue as you think. Many people are now aware of the costs of divorce and the damage that such disputes can cause to children. You will probably know someone who has had a bad divorce and it gives you the opportunity to say you would like to be different from that couple down the road. A prenup can be seen as an insurance policy that you hope will be filed away and never needed. There are lots of positive reasons for having a prenup and for talking about the future. It is an opportunity to test your attitudes towards children, responsibility for financing them, whether you would suspend your career to care for them and how you would treat one another in the event of long-term unemployment or ill-health. It is much better to test these issues and values before marriage.
- What do I do next?
You should consult an experienced family lawyer and you could consider the possibility of agreeing the prenup in mediation.
I am a specialist family lawyer and a mediator. I draft many prenuptial and postnuptial documents each year and you can contact me at email@example.com and 020 7940 4000.