Prenups may seem like something only needed by the very rich and famous, but following a landmark case, they are increasingly becoming more and more common in the UK. We asked leading lawyer Jo Edwards, Head of the Family Team at Forsters, all of our questions to help you decide whether you might need one before getting married.
What is a prenup?
A prenup is a document which a couple sign, before they get married, to set out what the financial settlement would look like if they got divorced and to "ringfence" any assets that one or both of them is bringing to the marriage, or that they may inherit during the marriage.
Ideally it is quite a flexible document; a prenup may deal with what would be the impact on the financial settlement of children being born to the couple and one of them giving up work, of one of them falling ill and not being able to work, or of a short, medium or long marriage. Few couples want to come back and revisit the terms of their prenup each time an important life event occurs.
Why should couples consider getting them?
In my practice, I see prenups requested for many reasons. For some couples, there is an existing or expected disparity in their wealth, and one person wishes to protect what may be assets which have been built up in their family over many generations.
In other cases, it may be a young professional couple who don't have significant wealth but who expect to be successful in their careers and they want to ringfence the fruits of their successes for themselves.
And a growing phenomenon is the "silver splicer", people aged over 60 who may be marrying for a second time and wish to protect assets to leave to any children of a previous marriage without fear of those assets being raided on divorce.
Even if you don't have a huge amount of money, should you still get one?
It depends. The benefit of having a prenup is that it gives certainty of outcome in the event of divorce and minimises the risk of expensive, acrimonious litigation. The couple have autonomy to decide the outcome on divorce, rather than leaving everything to chance. However, ultimately a judge will have to rubber-stamp the financial arrangements on divorce and their main job will be to check that financial needs (usually for housing and to meet day to day income needs) are met. In reality, if by the time of any divorce there are not likely to be surplus assets left over once those needs have been met, then there is probably little point in having a prenup.
Is it common for people to have prenups?
Prenups are increasingly common; in the last two years I have handled more prenups than in 18 years of practice before that. Divorce lawyers agree that there has been a significant increase in the number of prenups since the landmark case of Radmacher v Granatino 8 years ago, in which the court said for the first time that a prenup will be upheld unless one person can show why it should not be.
A survey by my firm last autumn found that two-thirds of lawyers had seen an increase in prenups since that groundbreaking case; and that 98% had been instructed on new prenup cases in the past year.
The most common age bracket for those entering a nuptial agreement was 31 to 45. The main driver for prenups was wealth protection, with over two-thirds (68%) of those surveyed citing this as the main reason for the agreements they had advised on. 32% cited other drivers including minimising the risk of adverse outcomes on divorce/providing more certainty (15%), pressure/encouragement from third parties i.e. parents/children/trustees (9%) and 8% giving other reasons, such as protection of business interests.
What should you do if your partner asks you to sign one?
Make sure you are properly advised and don't be afraid to ask your solicitor to negotiate a fair deal for you. Understandably this can seem like a daunting task - most people are busy putting the finishing touches to their special day and don't want to be spending time discussing a prenup.
But one of the main reasons for marriage breakdown is lack of financial transparency between a couple, so this is a good opportunity to go into your marriage with open eyes about what the financial picture is and what it would look like in the (statistically unlikely) event you got divorced. If your partner is driving the prenup, he/she should expect to pay for both lawyers (you will each need to be independently advised), and your lawyer will be there to advise and protect you.
How do you get a prenup?
A prenup in the UK (note that the laws are different in England & Wales and Scotland) is a sophisticated document and one in respect of which you will need tailored advice, whether you are the person driving it or not.
To carry the most weight:
- it must be signed at least 28 days (and usually no more than 12 months) before the wedding;
- there must be full and frank disclosure on both sides of the finances;
- you must have independent legal advice;
- and its terms must be fair (as viewed against the circumstances at the time of divorce, hence having to think about what would be the impact on the settlement of life events and the length of the marriage).
They can take a few weeks to negotiate, depending on complexity and the negotiating positions taken, so if you are the one pressing for a prenup you are sensible to start the process at least 4-5 months before your wedding date. I have had some unfortunate instances of faxing a couple at their wedding venue overseas, on the eve of their wedding, because they have left their negotiations so late. Nobody wants that late distraction from lawyers!
How much do they cost?
Costs will vary significantly, though a properly drawn up prenup is likely to cost from a couple of thousand pounds if it is quite straightforward, a more complex prenup several thousand pounds (especially where the asset structure is more complicated or there are international connections necessitating overseas advice).
This may sound like a lot of money. I always ask the couple - how does this compare to the amount you have spent on your wedding? (Usually it is a fraction; I once had someone question my fee quote before telling me that they were spending over £100,000 on their wedding). I also tell them that if they divorced without a prenup and needed to go to court, the costs would likely be tens of thousands of pounds and therefore many multiples of the cost of a prenup. A prenup is an insurance policy against that sort of eventuality, because you are very significantly narrowing the scope for divorce litigation.
Can you sign a prenup after you are married?
Yes; this is called a "postnup". Sometimes couples have a postnup because they start prenup negotiations too late and miss the boat; sometimes it is because one of them is unexpectedly coming into money, perhaps an inheritance or a lifetime gift from a relative, and the benefactor may be insisting on a postnup before making a gift. My own experience is that it can be very difficult to get a postnup over the line and negotiations can become protracted; there is nothing that focuses the mind like a wedding date on the horizon!